P O L I T I C A L I N V E S T I G AT I O N S

In this fascinating new book Robert Fine recasts three great studies of modern
political life: Hegel’s Elements of the Philosophy of Right, Marx’s Capital and Hannah
Arendt’s Origins of Totalitarianism. The originality of this book lies in its radical
reinterpretation of these individual texts which frees them from their intellectual
isolation and reads them together as a living unity. In Fine’s account all three
emerge as formative works of critical theory which succeed in sustaining the great
promises of modern politics – freedom, equality, solidarity, the new – alongside
the grubbier reality of domination and violence. They are all revealed as empirical
works which analyse the actual forms of political modernity, as scientiﬁc works
which link external appearances to internal processes, as dynamic works concerned
with the movement, trajectory and potentiality of politics and as equivocal texts
which not only unmask the illusions of political life but also the illusions of
unmasking itself. Political Investigations offers a clear and engaging read for students,
academics and all who work and take pleasure in social and political thought. It
also significantly reviews present-day understandings of the relation between
normative political philosophy and empirically-based social theory.

Robert Fine is Convenor of the MA in Social and Political Thought and Director
of the Centre for Social Theory at the University of Warwick. He is author of
Democracy and the Rule of Law: Liberal Ideals and Marxist Critiques (Pluto) and
Beyond Apartheid: Labour and Liberation in South Africa (Pluto). He is co-editor
of Social Theory after the Holocaust (Liverpool University Press).

P O L I T I C A L

I N V E S T I G AT I O N S

Hegel, Marx, Arendt

Robert Fine

London and New York

First published 2001

by Routledge

11 New Fetter Lane, London EC4P 4EE

Simultaneously published in the USA and Canada

by Routledge

29 West 35th Street, New York, NY 10001

Routledge is an imprint of the Taylor & Francis Group

reproduced or utilised in any form or by any electronic,

mechanical, or other means, now known or hereafter

invented, including photocopying and recording, or in any

information storage or retrieval system, without permission in

writing from the publishers.

British Library Cataloguing in Publication Data

A catalogue record for this book is available

from the British Library

Library of Congress Cataloging in Publication Data

Fine, Robert

Political investigations : Hegel, Marx, Arendt / Robert Fine.

p. cm.

Simultaneously published in the USA and Canada.

Includes bibliographical references and index.

1. Liberty. 2. Equality. 3. Solidarity

4. Authoritarianism. 5. Totalitarianism. 6. Hegel, Georg Wilhelm

Friedrich, 1770–1831. Grundlinien der Philosophie des Rechts.

7. Marx, Karl, 1818–1883. Kapital. 8. Arendt, Hannah. Origins

of totalitariansim. I. Title.

JC585 .F544 2001

320.1

′01–dc21

00-069033

ISBN 0–415–23907–9 (hbk)
ISBN 0–415–23908–7 (pbk)

This edition published in the Taylor and Francis e-Library, 2005.

“To purchase your own copy of this or any of Taylor & Francis or Routledge’s

collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.”

ISBN 0-203-99547-3 Master e-book ISBN

To my uncle, Harry Blacker,

who put a smile on our faces and knew

what is important in life

and to my daughter, Shoshi Fine,

with all my love.

C O N T E N T S

Acknowledgements

Abbreviations

Introduction

1 Reading and misreading Hegel’s Philosophy of Right

2 The idea of Hegel’s Philosophy of Right

3 Hegel and Kant: natural law and the science of right

4 State and revolution: Hegel, Rousseau, Marx

5 Right and value: unity of Hegel and Marx

6 Totalitarianism and the rational state: Arendt

100

7 State and revolution revisited: Arendt

122

8 Kant’s cosmopolitan ideal and Hegel’s critique

132

9 Arendt’s critical cosmopolitanism

151

Bibliography

166

Index

172

vii

A C K N OW L E D G E M E N T S

I should like to acknowledge the patience and support of Mari Shullaw at
Routledge, and of copy-editor Tom Chandler; also, the immeasurable help I have
received from many friends/colleagues/students in the Centre for Social Theory,
the MA in Social and Political Thought, the Sociology Department and the
University of Warwick more generally. By name I would like to offer thanks to
Alan Norrie, Alison Diduck, Charlie Turner, David Hirsh, David Seymour, Gill
Frith, Gillian Rose, Gillian Bendelow, Glyn Cousin, Gloesha Challice, Howard
Caygill, Istvan Pogany, Kakia Goudeli, Lawrence Welch, Maria Pia Lara, Marion
Doyen, Mike Neary, Peter Wagner, Simon Clarke, Simon Williams, Vic Seidler.
And a special mention for family – Gillian Bendelow, Shoshi Fine, Tessa
Watkinson, Sylvia Stern, Tony Fine and to the warm and wonderful Cuccuru
family.

A B B R E V I AT I O N S

Full citations, editions, etc. are given in the Bibliography.

A&J

Arendt and Jaspers, Correspondence

BPF

Arendt, Between Past and Future

Capital Marx, Capital
EJ

Arendt, Eichmann in Jerusalem

ETW

Hegel, Early Theological Writings

Arendt, Essays in Understanding

Arendt, The Human Condition

KPW

Kant, Kant’s Political Writings

Letters

Marx and Engels, Letters on ‘Capital’

Arendt, Life of the Mind

LPWH Hegel, Lectures in the Philosophy of World History
MDT

Arendt, Men in Dark Times

MEW

Marx, Karl Marx: Early Writings

Kant, The Metaphysical Elements of Justice

Arendt, On Revolution

Arendt, The Origins of Totalitarianism

Hegel, Philosophy of History

Hegel, Elements of the Philosophy of Right

Hegel, Phenomenology of Spirit

I N T R O D U C T I O N

This book is a study of the political thought of three writers: Hegel, Marx and
Hannah Arendt. At its centre are three works: Hegel’s Philosophy of Right, Marx’s
Capital and Arendt’s Origins of Totalitarianism. They are all ‘classics’ of social and
political thought and they are all texts I love to read. Beyond this subjective
enthusiasm, I believe that they are also united by more substantial considerations.
A central thesis of this work is that when these authors are read together, as a
unity, they reveal more about themselves and about the political reality they seek
to understand, than when they are read independently or in opposition to one
another. These writers and their books may appear at ﬁrst sight to be very different
but my contention is that they resemble, complement and supplement one another
in the most interesting ways. If we remain ﬁxed at the level of contrasting Hegel’s
‘idealism’ to Marx’s ‘materialism’ to Arendt’s ‘anti-foundationalism’, then not only
do we freeze their thought into static philosophical categories, but political
philosophy itself becomes a matter of merely choosing one philosophical pre-
supposition over another. Far from transcending a subjective enthusiasm, we would
only repeat it in a more intellectual disguise.

In his wonderful book, Why Read the Classics?, Italo Calvino writes that one of

the things which makes a work into a ‘classic’ is that, when we read it, we ﬁnd the
most ‘original and unexpected’ elements that surpass all our previous conceptions
of what it contained. The substance of what we ﬁnd ‘original and unexpected’ in
Hegel, Marx and Arendt might be different to different readers, and may change
every time we open their books, but the crucial point is that when we read them,
we cannot help questioning the images we have of them. The texts themselves
never seem to exhaust what they have to say to us and the common use of terms
like ‘Hegelian’, ‘Marxist’ or ‘Arendtian’ always seems hopelessly inadequate in
relation to what we read. In order to discover what animates these authors and
what might make them once again vital to our own times, we need to shake
off what Calvino calls ‘the pulviscular cloud of critical discourse’ which has so
often surrounded them (Calvino 1999: 6). Philosophy of Right, Capital and
Origins of Totalitarianism are all texts which bear heavily the weight of previous
interpretations and they trail behind themselves all manner of traces in our
cultures; but one thing which makes them into classics is how much they surprise
us when we read them and compare them with the images we previously had.

Why should we read these classics of political philosophy and social theory

today? Judging by the number of recent books concerned with the political thought
of Hegel and Arendt, the feeling that these two writers are still speaking to us
seems to be widely shared. Marx may appear to be more exhausted at the present
moment but pronouncements of his ‘death’ are, as it is said, premature. If anyone
objects that the writings of these authors are difficult to read (which they
sometimes are) and that it may not be worth the effort since it requires long
stretches of time that are at odds with our current pace of life (even in academia),
or that reading or rereading them may turn out to serve no useful purpose, we
might refer to the pleasure of reading itself and say that ‘serving a purpose’ is not
the only criterion for reading a book. In any case we should, as Calvino points out,
leave space for reading books which might be productive of surprising discoveries.
Social theory can never remain content with frozen images.

I try in this book to reinterpret the politics of Hegel, Marx and Arendt in a way

that makes them interesting for our own times. I also try to read them in relation
to the common concerns they confront – the spectres of both freedom and
barbarism by which the modern world is haunted. We cannot read any ‘classic’ of
political thought in a vacuum. We cannot cut ourselves off from contemporary
experience or contemporary writing. And even if we ﬁnd contemporary political
culture banal and stultifying, it remains the necessary context in which we have
to place ourselves. When we read any ‘classic’, we have to establish where we are
reading it from, for otherwise we will tend to drift, as Calvino puts it, in a ‘timeless
haze’. The evocative image Calvino draws of a classic text is that it ‘relegates the
noise of the present to a background hum which at the same time the classics
cannot exist without’, and ‘persists as a background noise when a present that is
totally incompatible with it holds sway’ (Calvino 1999: 9). This captures very well
my own relation to these writers. I would only add to what Calvino says that we
should not make the opposite error of turning contemporary presuppositions into
an absolute standard against which to measure the validity of what these authors
wrote. If there is a point in returning to the past, it is not to hear something that
is merely an echo of our own voices but rather to confront afresh our own political
assumptions and open up new possibilities. We have to allow the differences
between ‘them’ and ‘us’ to become visible or audible without assuming that when
a difference emerges ‘they’ are wrong and ‘we’ are right. There is not much use in
setting up a contemporary standard – be it the ‘open society’, or the ‘recognition
of difference’, or ‘deliberative democracy’ – as an Archimedian point against which
to judge the worth or failings of past writers. After all, Hegel, Marx and Arendt
engaged critically with most of the major and some of the minor political currents
of their day, and it is in the spirit of their work if we read it as a critical engagement
with our own present-day prejudices.

Let me state certain methodological guidelines which inform my own reading

of these books. First, politics is part of our world, not the whole. It is not surprising
that those who specialise in the study of politics sometimes mistake the part for
the whole and confuse the forms of subjectivity, freedom and discipline which

I N T R O D U C T I O N

constitute political modernity with modernity as such. But to understand the
substance of modern politics, we need to address its place within the whole, not
identify it with the whole.

Second, we should not assume that the separation of politics as a separate sphere

from other areas of social life is something which is naturally the case. The world
has not always been divided up in this way. The separation of politics from society
in general is an historical accomplishment, not a fact of nature, and we need to
ask what it is about the modern age that gives rise to and maintains such divisions.

Third, we need to ask how the separation of political from other spheres of social

life is achieved. I treat its emergence as a product of the actual ways in which
the social world is organised. We cannot separate our ways of seeing from what is
seen, nor can we treat the emergence of certain disciplinary divisions within
academe independently of the subject matter which those disciplines reﬂect and
respond to.

Fourth, in seeking to bridge the gap between a tradition of social theory which

ignores or devalues the political and a tradition of political thought which ignores
or devalues the social, I think we need to keep our feet firmly on the ground.
What has occurred in practice is that the old neglect of politics within social
theory has now been ‘remedied’ by all manner of over-compensatory discourses –
either introducing politics into every nook and cranny of social life or turning the
political into an ontology of freedom. In this respect, at least, we need to steer
a middle path.

Finally, Jürgen Habermas has argued that contemporary political thought tends

to be divided into two camps – on the one side, a normative political philosophy
which loses contact with the world and speaks of ‘the political’ in a spirit of
disdain for actual politics; on the other, a realist political science which contents
itself with describing the world from a resolutely non-normative point of view
and either accepts things the way they are or says that nothing better can be
expected here. Few of us who engage in this trade would like to think of ourselves
in either camp, but what Habermas says is certainly recognisable. To bridge this
gap, I reach towards a form of political thought whose task is to understand the
world as something external to itself and on this basis to make space for reﬂective
judgement and wilful action. Understanding is itself an activity which resists
indoctrination and mindless obedience, attaches us in our subjectivity to the world
around us, and needs no further justiﬁcation.

There is of course a subjective element in my choice of authors and their works,

but my central argument is that these three writers, read together and released
from the weight of prior interpretations, continue to illuminate both political
life and our ways of understanding it. I start with Hegel because he put the idea
of right at the centre of his political philosophy and broke radically from natural
law in his conception of a science of right. I move to Marx not because he
understood Hegel well, but because no one has better illuminated what Hegel was
doing in his Philosophy of Right than Marx in his critique of Capital, and because
reading Hegel and Marx together gives us a more complete and fruitful account

I N T R O D U C T I O N

of modernity than reading them apart. It allows us to see the relation between the
subjective forms of right and the objective forms of the commodity as two sides of
a single social order. I finish with Arendt, not because she had a profound
understanding of Hegel and Marx, which she did not, but because no one has more
subtly elaborated both the potentiality for barbarism and the possibilities of
freedom that arise out of modern political life than she did in Origins
of Totalitarianism. She picked up the mantle of Hegel and Marx far more than is
currently recognised.

We cannot understand any of the classic texts of political philosophy in

isolation. Writers write both in relation to other writers and in relation to the
great political events of their times, and it is this twofold relationship, to social
and political thought and reality, that gives meaning and purpose to their work.
The meaning of words cannot be isolated from their use and all manner of misun-
derstanding arises if we abstract political concepts from the theoretical and social
relations in which they are inserted. As social theorists we often lay claim to the
originality both of the events we seek to comprehend and of the forms of thought
we devise to make comprehension possible. We have a professional interest in
stressing the innovative character of our conceptual discoveries, the disjunction
of our own thought from the tradition which precedes us, and the peculiar
pertinence of our ways of thinking to the problems which dominate our own times.
Hegel, Marx and Arendt are no exception. They too stressed the revolutionary
character both of their age and their own thought in relation to their age. Indeed,
they rightly placed the idea of revolution as the most important idea of modern
political life.

It is perhaps a paradox of contemporary social and political thought that the

more we lose sight of the modern idea of revolution, overcome by disillusionment
in the face of broken promises, the more we are infatuated with the idea of
the novum – a sense of originality that miraculously escapes all complicity with
the past. If we say today, as many do, that we must ﬁnally break with the idea of
a radical break, this is not to abandon the idea of revolution, which provides after
all the only possibility of escape from injustice and despair, but rather to relinquish
a conceptual form of thinking which mystiﬁes the idea of revolution, lifts it far
above the mundane world, and loses sight of the fact that it is itself a product of
the world it seeks to change. The proclivity of revolution to reproduce, sometimes
in more irrational form, the power it overturns is not a reason for us to throw
up our hands in despair, but rather to face up to the burden of events whatever
message it delivers, to explore the dynamics of our own disillusionment, and see
the notion of ‘absolute beginning’ for what it is: the merely conceptual aspect
of political life divorced from its actuality. The philosophy which places its idea
of the political opposite existing politics forgets that the ideal is itself a one-sided,
untrue and sometimes menacing expression of the world we need both to
comprehend and change.

I N T R O D U C T I O N

R E A D I N G A N D

M I S R E A D I N G H E G E L’ S

P H I L O S O P H Y O F R I G H T

The state is the actuality of concrete freedom. But concrete freedom
requires that personal individuality and its particular interests
should reach their full development and gain recognition of their right
for itself . . .

(Hegel PR §260

)

The old orthodoxy

If Hegel were what his critics thought he was, a philosopher who devised the
most elaborate of means to justify the subjection of the individual to the state,
then there would be little point in dredging up his politics today – except perhaps
out of an interest in how the idea of freedom can be transformed by the modern
mind into its opposite. Fortunately, however, this is not the case. Hegel was
a philosopher of right, not of the state, and it is here that his contribution to
contemporary political thought lies. In short, the image we are often given of the
Philosophy of Right bears little resemblance to what we ﬁnd when we actually read
the text.

In his Lectures on Hegel and his Time (1857) Rudolf Haym set the scene for

what we might call the old orthodoxy, when he described Hegel’s Philosophy of
Right as a ‘formula for political conservatism’ whose aim was to provide ‘a scholarly
justification of the Karlsbad police state and its political persecution’. It was
Haym who branded the older Hegel ‘the philosophical dictator of Germany’ and
discerned in his later work ‘the scientific dwelling of the spirit of Prussian
restoration’. He described the Philosophy of Right as a ‘pernicious, terrifying doctrine’
which ‘sanctiﬁes the existing as such’, elevates the state into an object of divine
worship and debases the individual into a superﬂuous and expendable ‘moment’ of
the state. Worst of all, Hegel did so in the name of right and freedom. It seemed
to Haym that Hegel’s identity of the actual and the rational was ‘absolutely
scandalous’, either because it rationalised the existing political order or because it
was a mere tautology dressed up in the ﬁnery of speculative philosophy.

Haym paved the way for the increasingly hostile judgements passed on the

Philosophy of Right by later generations of liberal scholars, especially those who

witnessed the violence of modern states manifested in the First World War and
then in the rise of totalitarian regimes. After the First War, L. T. Hobhouse called
Hegelianism a ‘false and wicked doctrine’ which uses so-called ‘dialectical logic’
to convert the freedom of the individual into the freedom of the state against the
individual (Hobhouse 1918). The logic of the ‘metaphysical theory of the state’,
as Hobhouse saw it, was this: ﬁrst, freedom can only be attained when we think
and act in conformity with our own rational will, otherwise we are determined by
our passions; second, the rational will of the individual is identical to the general
will, i.e. the will which expresses the good of society as a whole; third, the general
will is embodied in the rational state. At the end of this dialectical dog’s dinner
Hobhouse argued that we ﬁnd ourselves free only when our actions and thoughts
conform with those demanded of us by the state. Needless to say, Hobhouse was
not impressed by this ‘logic’, although it should be noted that his main target
was not Hegel himself but the ‘neo-Hegelian’ theories of the state advanced by
the likes of James Stirling (1865 and 1971) and Bernard Bosanquet (1918).

With the experience of totalitarianism before its eyes, ‘English’ liberalism

became even more impassioned in its hostility to Hegel’s philosophy of the
state. Karl Popper wrote in 1945 that in Hegel’s political philosophy ‘the state
is everything, and the individual is nothing’. Popper echoed the view earlier
expressed by Schopenhauer, that the ‘old man’ debased philosophy by turning
it into a tool of state interests, and he proclaimed that Hegel’s ‘bombastic and
mystifying cant’ was inﬂuential only because it had the authority of the Prussian
state behind it. Popper saw in Hegel a crucial link between old Platonism and
modern totalitarianism (Popper 1966: 31). His outrage was only fuelled by Hegel’s
insistence that ‘the absolute goal of free mind is to make freedom its object, i.e.
to make freedom objective’ (PR Preface 32). It was this use of the language of
freedom to deny freedom that appeared as Hegel’s greatest offence. In 1946
Bertrand Russell followed suit, when he wrote that Hegel’s Philosophy of Right
‘justiﬁes every internal tyranny and every external aggression that can possibly
be imagined’ (Russell 1984: 768–9). In the same year Ernst Cassirer wrote that
‘no other philosophical system has done so much for the preparation of fascism
and imperialism as Hegel’s doctrine of the state’ (Cassirer 1946: 273). Literally
hundreds of other examples of such hatred toward Hegel’s political philosophy
could be given.

The textual support for this reading of Philosophy of Right was present in Hegel’s

characterisation of the modern state. He described it as ‘the actuality of the ethical
idea – the ethical spirit as substantial will, manifest and clear to itself, which thinks
and knows itself and implements what it knows in so far as it knows it’ (PR §257);
as ‘self-consciousness . . . raised to its universality’ and as ‘rational in and for
itself’ (PR §258); as ‘an absolute and unmoved end in itself’ in which ‘freedom
enters into its highest right’ (PR §258), as ‘the march of god in the world’ and
‘power of reason actualising itself’ (PR §258

). Hegel wrote that ‘one should

expect nothing from the state except what is an expression of rationality’ and that
we should, therefore, ‘venerate the state as an earthly divinity’ (PR §272

), etc.

R E A D I N G A N D M I S R E A D I N G T H E P H I L O S O P H Y O F R I G H T

Hegel also wrote that as individuals we are mere ‘moments’ in relation to the
self-sufficient power of the state, that our ‘highest duty is to be members of
the state’ (PR §258) and that our existence is a matter of ‘indifference’ compared
with that of the state (PR §145

). It certainly appears at face value that the old

orthodoxy was right – that Hegel’s Philosophy of Right sanctiﬁes the state as much
as it devalues the rights of individuals. There is, however, more to Hegel than
meets the eye.

One major difﬁculty with this reading of Philosophy of Right has now been well

rehearsed within the secondary literature: it is that it was based on a selective
and one-sided reading of the text which does violence to the text as a whole. The
crucial concept Hegel uses to characterise the modern state is that of ‘concrete
freedom’, by which he means a freedom which combines the rights of individuals
with the unity of the state. In a now famous passage Hegel writes:

The principle of modern states has enormous strength and depth because
it allows the principle of subjectivity to attain fulfilment in the self-
sufﬁcient extreme of personal particularity, while at the same time bringing
it back to substantial unity and so preserving this unity in the principle of
subjectivity itself. The essence of the modern state is that the universal
should be linked with the complete freedom of particularity and the
well-being of individuals . . . the universality of the end cannot make
further progress without the personal knowledge and volition of the
particular individuals who must retain their rights . . . the universal
must be activated, but subjectivity on the other hand must be developed
as a living whole. Only when both moments are present in full measure
can the state be regarded as articulated and truly organised.

In other words, the principle of the modern state requires in Hegel’s account
the complete freedom of the individual subject. This right of subjective freedom is
not only the accomplishment of the modern state, it is what deﬁnes the modern
age and its ripples affect every sphere of social life:

This right, in its inﬁnity, is expressed in Christianity, and it has become
the universal and actual principle of a new form of the world. Its more
speciﬁc shapes include love, the romantic, the eternal salvation of the
individual as an end, etc.; then there are morality and conscience,
followed by the other forms, some of which will come into prominence
. . . as the principle of civil society and as moments of the political
constitution, while others appear within history at large, particularly in
the history of art, the sciences and philosophy.

(PR §124

)

Hegel argues that the right of subjective freedom is the key marker of the difference
between the ancient and the modern age. In the ancient polis, he writes,

R E A D I N G A N D M I S R E A D I N G T H E P H I L O S O P H Y O F R I G H T

‘universality was indeed already present but . . . particularity had not yet been
released and set at liberty’ (PR §260

). It is only in the modern age that we see

for the first time in human history the desire to reconcile the universal and the
particular in the form of the modern state.

This aspect of Hegel’s philosophy of right has now been widely noted. For

example, in his introduction to the Cambridge University Press edition of
Philosophy of Right Allen Wood points out that the institutions which Hegel
includes within his rational state – individual rights, the rule of law, trial by jury,
a written constitution, a professional civil service, a representative legislature, a
relatively autonomous civil society, the separation of church and state, etc. – were
not generally present within existing Prussian political life, corresponded closely
with the aims of the Prussian democratic reform movement and not with those of
Prussian restorationism, and preﬁgured in large measure the shape of the liberal
democratic polity to come (Wood 1991: ix). In Hegel’s idea of the ‘rational state’
the monarchy was constitutional rather than absolutist (PR §273), the executive
was in the hands of the educated middle classes rather than the nobility (PR §297),
the legislature was based on popular representation (PR §300), the landed classes
were corralled into a relatively powerless upper house of lords (PR §§302 and 304),
religious authority was separated from the state (PR §270

), and the Reformation

was celebrated for its inauguration of autonomous, reflective individuality (PR
Preface 22). Wood concludes that the image of Philosophy of Right painted by the
old orthodoxy was ‘simply wrong’ (Wood 1991: ix).

There is plenty of other material in the text to support Wood’s criticisms of

the old orthodoxy. First, Hegel’s comment on those who in his own time sought
to deny civil and political rights to Jews, on the grounds that they belonged to a
‘foreign nation’, may serve to illustrate his commitment to a universal conception
of human rights and his opposition to any exclusionary political agenda. When
we speak of Jews as human beings, Hegel wrote,

this is not just a neutral and abstract quality . . . for its consequence
is that the granting of civil rights gives those who receive them a self-
awareness as recognised legal persons in civil society . . . If they had not
been granted civil rights, the Jews would have remained in that isolation
with which they have been reproached, and this would rightly have
brought blame and reproach upon the state which excluded them.

(PR §270 fn.)

For Hegel the idea of humanity was not a ‘mere idea’ but the solid ground on which
civil and political rights were to be based.

Second, the restorationist reading of Philosophy of Right makes little sense of

Hegel’s ﬁerce attacks on the leading ﬁgure of the Prussian Restoration, Karl Ludwig
von Haller, whose Restoration of Political Science (1818) had appeared two years
earlier and proposed a particularly thoughtless version of the doctrine that ‘might
is right’.

Hegel formulates the ‘principle’ of Haller’s thesis thus:

R E A D I N G A N D M I S R E A D I N G T H E P H I L O S O P H Y O F R I G H T

just as in the inanimate world the larger displaces the smaller, the
powerful the weak, etc., so also among the animals, and likewise among
human beings does the same law reappear in nobler forms . . . this is
accordingly the eternal and unalterable ordinance of God, that the more
powerful rules, must rule and always shall rule’.

(PR §258)

Hegel comments with unconcealed scorn:

Herr von Haller not only consciously dispenses with the rational content
of the state and with the form of thought, but fulminates with passionate
zeal against them both. The Restoration doubtless owes part of what Herr
von Haller assures us is the widespread inﬂuence of its principles to the
fact that it has managed . . . to dispense with all thoughts and has thereby
managed to make the whole work as of one piece in its thoughtlessness.

(PR §258 fn.)

Hegel describes Haller’s hatred of right, law and legislation as ‘the shibboleth
whereby fanaticism, imbecility and hypocritical good intentions manifestly and
infallibly reveal themselves for what they are, no matter what disguise they may
adopt’ (PR 258 fn.). Neither does the ‘old’ reading of Philosophy of Right make much
sense of Hegel’s attacks on the historical school of jurisprudence whose leading
representative, Friedrich Karl von Savigny, sought to justify existing laws by
tracing their roots back to Roman law. Hegel pointed out that the attempt to
justify present-day laws by reference to their origins suffers from the genetic fallacy,
that since those historical circumstances no longer exist, nothing is justiﬁed in
terms of present conditions.

If it can be shown that the origin of an institution was entirely expedient
and necessary under the speciﬁc circumstances of the time, the require-
ments of the historical viewpoint are fulﬁlled. But if this is supposed to
amount to a general justiﬁcation of the thing itself, the result is precisely
the opposite; for since the original circumstances are no longer present,
the institution has thereby lost its meaning and its right.

(PR §3

)

One example Hegel gives is the attempt to justify the existence of monasteries in
the modern world by reference to their past services ‘in cultivating and populating
areas of wilderness and in preserving scholarship through instruction, copying
of manuscripts, etc.’ Since these circumstances have now changed, he concludes,
the monasteries have at least in these respects become superﬂuous. The key point
is this: that ‘a determination of right may be shown to be entirely grounded in and
consistent with the prevailing circumstances . . . yet it may be contrary to right
and irrational in and for itself’ (PR §3

). There are numerous determinations

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of Roman civil law which follow quite consistently from Roman institutions of
patriarchalism and slavery, but are not for this reason right. The basic problem with
the historical school of jurisprudence, as Hegel put it, is that it makes possible
‘the eternally deceptive method of . . . supplying a good reason for a bad thing and
believing that the latter has thereby been justiﬁed . . . the truly essential issue, the
concept of the thing, has not even been mentioned’ (PR §3).

Hegel was equally dismissive of the hatred of right, law and the state that was

expressed by radicals in the name of the people. Taking as his example the German
nationalist, Jacob Fries, he characterises his doctrine thus:

In a people among whom a genuine communal spirit prevails, all business
relating to public affair would gain its life from below, from the people itself;
living societies, steadfastly united by the sacred bond of friendship, would
dedicate themselves to every single project of popular education and
popular service.

(PR Preface 15)

As Hegel saw it the superﬁciality of Fries’s self-styled philosophy lay in the fact
that it was not based on ‘the development of thought and the concept but on
immediate perception and contingent imagination’. It reduced ‘the complex inner
articulation of the ethical, i.e. the state, the architectonics of its rationality . . .
to a mush of “heart, friendship and enthusiasm” ’ (PR Preface 16). It substituted
for the work of understanding feeling which reserves the right to do as it pleases
and conscience which identiﬁes right with subjective conviction. It declared its
contempt for reason and science on the grounds that truth cannot be known, while
at the same time it declared this truth to be incontrovertible. It reduced truth
and ethics to subjective convictions, with the result that the most criminal of
principles, since they too are convictions, were accorded the same status as the
most democratic and ethical (PR Preface 19). Hegel described this radical hatred
of right and law (no less than the conservative hatred expressed by von Haller) as
the ‘chief shibboleth whereby these false friends of “the people” give themselves
away’ (PR Preface 17).

The new orthodoxy

The natural conclusion to be drawn from these arguments is that Hegel’s
philosophy of right was far more embedded in the liberal tradition than it seems
at ﬁrst sight. Certainly the image of Hegel as the philosopher of Prussian restora-
tion or as the precursor of totalitarianism is shattered once we read these parts
of the text. It is not surprising, therefore, that the image that has replaced the
old orthodoxy is that Hegel was after all a liberal and that his philosophy was
aimed at displaying the fundamental rationality of modern liberal institutions.
From within the perspective of this ‘new orthodoxy’ Hegel is now celebrated both
as an heir to classical liberal theories of the state and as their arguably most

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advanced interpreter. Many commentators now praise him for three major
achievements: ﬁrst, overcoming the ahistorical and asocial conceptions of natural
right present within natural law theories of liberalism and instead locating the
idea of right in the infrastructure of modern political life; second, overcoming
the one-sided viewpoint of a ‘vulgar’ liberalism which treats rights of private
property as everything and political intervention on behalf of the public good as
nothing; and third, reminding liberalism of its own forgotten origins when the aim
was not to afﬁrm private right over the public good but rather to achieve harmony,
reconciliation, synthesis between these poles. From this perspective Hegel’s
Philosophy of Right was a critique of a vulgarised liberalism but not of liberalism
as such.

The new orthodoxy has taken many different forms. For example, one of

the landmarks of its development within contemporary social theory was the
publication in 1972 of Shlomo Avineri’s study, Hegel’s Theory of the Modern
State. Avineri argued that Hegel rescued liberalism from its own limitations by
radicalising its conception of the state and thereby prefiguring the actual path
liberalism was to take. He read Hegel’s idea of the ‘rational state’ as a modern, social
democratic welfare state ‘free . . . from the shackles of the old absolutism, based on
representation, served by a rationally ordered bureaucracy, allowing ample space
for voluntary associations and trying to strike a balance . . . between homo eco-
nomicus and zoon politikon’ (Avineri 1972: 240). For Avineri, the social democratic
state really was the ‘actuality of the ethical idea’; its citizens really were linked to
it by a relation more like ‘identity’ than ‘faith or trust’; the feeling of patriotism
was based on the awareness of citizens that their interests are preserved in the state’s
interests. Avineri echoed Hegel’s comment that when we walk the streets at night
in safety, we do not often enough reﬂect on how this is due solely to the working
of state institutions (PR §268

). He echoed Hegel’s opposition to social contract

theories which confuse the state and civil society, arguing that the state should not
be equated exclusively with the protection of civil society and that the private
interests of individuals should not be the ultimate end for which they are united.
Avineri endorsed Hegel’s theory of the ‘rational state’ because it was invested with
the task not merely of guaranteeing private property but of offering a successful
reconciliation of the class conﬂicts endemic within civil society and of embodying
the political self-consciousness of its members (Avineri 1972: 181).

In some versions of the new orthodoxy Hegel’s philosophy of right is associated

with a radical republicanism. For example, in their introduction to Hegel’s Political
Writings Lawrence Dickey and H. B. Nisbet read the Philosophy of Right as a
philosophy of ‘ethical life’ (Sittlichkeit) based on a metaphysical belief in the
spiritual essence of humanity which, with God’s help and our own determination,
can be cultivated and actualised in our social and political lives. They read it as
a critique of a subjectivism which in its material aspect focuses exclusively on the
pursuit of private interests and in its moral aspect focuses exclusively on inner-
directed feelings of piety. They see it as a critique of a civil society in which people
are fixated on their immediate concerns at the expense of public life and of

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a self-centred morality which has lost contact with communal concerns. The
rehabilitation of Hegel as a political thinker is here linked to his support for
a comprehensive public life beyond both the official political institutions of
government and the narrow world of private right.

This republican reading of the text is echoed in the work of Andrew Arato.

He acknowledges that there are ‘two Hegels’ ﬁghting an internal battle within the
text: an étatist Hegel who treats the state as a secular deity whose claims upon its
citizens are always unquestionable and irresistible, and a social Hegel who identiﬁes
universality with the free body of citizens. For the étatist Hegel the state must
impose order on civil society by means of the police, executive, crown and other
administrative organs. The social Hegel posits ‘the autonomous generation
of solidarity and identity’ by means of the associations of civil society (estates
and corporations), their representatives in the state parliament (the assembly) and
public opinion. Arato calls on us to decide in favour of the social Hegel: the Hegel
who sees civil society as a site for the effective participation of individuals in public
life, the Hegel who recognises that citizens have only a restricted part to play in
the business of the existing state but who regards it as essential to ‘provide people
with activity of a general character over and above their private business’ (Arato
1991: 316). Hegel’s contribution to political thought, as Arato presents it, was to
derive the category of civil society from the republican tradition in such a way as
to expand public life from the single level of the political state to a series of levels,
including ‘the public rights of private persons, the publicity of legal processes,
the public life of the corporation, and finally the interaction between public
opinion and the public deliberation of the legislature’ (Arato 1991: 318). In short,
he presents the Philosophy of Right as at least containing within the text a theory
of civil society which extols its associational life, representative institutions and
rule of law against the external power of the state.

Some recent American commentators read Hegel’s philosophy of right as

offering a ‘middle road’ or ‘third way’ between the conﬂicting demands of liber-
tarianism and communitarianism, individualism and collectivism, liberalism and
Marxism, property and community. For example, in their introduction to Hegel
and Legal Theory, Drucilla Cornell and her co-editors read him as a critic both
of a narrow liberalism which fetishises the right of private property and of an
equally narrow socialism which fetishises the authority of the state. They argue
that the strength of the Philosophy of Right lies in its recognition that property rights
are necessary, because they make possible ‘relationships of mutual recognition and
respect among autonomous social actors’, but insufficient because they ‘cannot
alone bring about the common good’ and individuals must also be educated in the
ethical life of the community. The third way, neither liberal nor socialist, is given
the name of Hegel (Cornell et al. 1991: x).

In a book entitled Hegel’s Critique of Liberalism Steven Smith writes in a similar

vein that Hegel’s rational state combines ‘the ancient emphasis on the dignity
and even architectonic character of political life with the modern concern for
freedom, rights and mutual recognition’ in such a way as to avoid both the

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individualistic and ahistorical conceptions of right characteristic of modern
liberalism and the totalising conceptions of community characteristic of ancient
political life (Smith 1991: 6). The title of Smith’s work is potentially misleading,
however, in that it expresses a discernible tendency to identify Hegel’s ‘rational
state’ with the existing liberal order. Smith celebrates the fact that the older
Hegel abandoned his earlier ‘naive’ enthusiasm for the democracy of the ancient
polis and came to accept the core political institutions of the bourgeois, Christian
world. The strength of Hegel’s philosophy, from this point of view, is that it serves
to demonstrate the implicit rationality hidden behind the apparently arbitrary
and contingent features of the modern state (Smith 1991: 9). Michael Hardimon
also maintains that the aim of Hegel’s political philosophy was to reconcile his
contemporaries to the modern political world (Hardimon 1994: 1). He writes that
Hegel teaches us to be ‘at home’ in this world – not because ideas of freedom and
autonomy are fully realised in it but because they are at least realised to a signiﬁcant
degree (Hardimon 1994: 22). The ‘peace with the world’ which both Smith and
Hardimon ﬁnd in the Philosophy of Right allows space for political reform, but its
basic instruction is to accept modern political institutions and learn to enjoy their
‘afﬁrmative aspects’. We may be critical of this or that ‘disﬁgurement’ of the state,
but the standard of judgement we use in evaluating actual state must come from
the idea of the ‘rational state’. The role of social theory which Hardimon draws
from Hegel’s philosophy of right is that it is an ‘indispensable aid’ in revealing the
rationality of political institutions which may at ﬁrst sight appear alien, arbitrary
and oppressive. If the current order fails to exhibit its underlying rationality,
Hegel’s dialectic is ready to come to the rescue, bugles blowing as in the final
cavalry charge, to show that the experience of alienation can be dissolved from
a higher philosophical standpoint.

Limitations of the new orthodoxy

The major difficulty with the new orthodoxy is not dissimilar to the difficulty
confronting the old: it is that it is based on a selective and one-sided reading of
the text. Thus to justify his interpretation of Hegel’s philosophy of right, Avineri
was compelled to soften Hegel’s more provocative propositions concerning
the ‘divinity’ of the state and its indifference towards individuals. For example,
he translates the proposition that ‘the state is the march of God through the
world’ (Es ist der Gang Gottes in der Welt, daas der Staat ist) as ‘It is the way of God
in the world that there is the state’ (Avineri 1972: 177). He stresses that Hegel’s
propositions refer to the idea of the state and not to any actually existing or
even possible state: ‘the state is not a work of art; it exists in the world, and hence
in the sphere of arbitrariness, contingency and error, and bad behaviour may
disﬁgure it in many respects’ (PR §258

). He downplays the archaic character of

some of the institutions Hegel included within his rational state – the estates, the
corporations, the monarchy and the House of Lords – as well as his apparent
support for the death penalty and for the exclusion of women from suffrage.

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Arato, as we have seen, admits that there are two Hegels, statist and social,

fighting it out in the text and ask us simply to choose. K.-H. Ilting draws on
Hegel’s earlier lectures on Natural Law and the Science of the State to argue that his
basic political commitment was to a republicanism in which individuals no longer
focus exclusively on their private rights but also recognise that they must co-operate
in the preservation of the political community which guarantees them their private
rights in the ﬁrst place. He argues that in these earlier lectures it is clear that what
was important for Hegel was that citizens consciously acknowledge the ‘universal’,
for only by this means can the political order be prevented from splitting into
two mutually hostile armies – the public and the private (Ilting 1984: 95). What
is entailed is a kind of contract: if the state is to support the personal rights of
individuals, the citizens must in return support the state which grants them such
rights and without which their so-called natural liberty would be worthless. Ilting
admits that the Philosophy of Right itself has a more étatist character compared with
the republicanism of his earlier work, but he explains this mainly as the result of
Hegel’s personal and political compromises designed to placate the state censors
established under the Karlsbad Decrees. T. M. Knox refers simply to the difﬁculties
Hegel had in steering a course between the Scylla of individual right and the
Charybdis of state despotism, and surmises that it was only human if he should
from time to time founder on one or other of these rocks (Stewart 1996: 79).
Although the new orthodoxy has done great service in rehabilitating the liberal,
rights-based aspect of Hegel’s philosophy of right, it too loses sight of the integrity
of the text as a whole. How, for example, are we to reconcile this republican
reading with Hegel’s declaration that Kant’s republicanism would ‘destroy the
absolutely divine principle of the state, together with its majesty and absolute
authority’ (PR §258

), or his belittling of the doctrine of popular sovereignty as

a ‘confused idea’ (PR §§257–68)?

The additional cost of breaking up the unity of the text is also to break up

the unity of the system of right itself. Thus while the new orthodoxy has focused
on forms of free association and social solidarity within civil society, Hegel
presented civil society as an integrated sphere of social life linking the corporations
and other forms of association with the system of needs and the police. Or while
the new orthodoxy has separated what it sees as the democratic aspects of the state,
its representative institutions and constitutional framework, from the ‘external’
elements of the state which it ﬁnds less acceptable, Hegel presents the state as an
‘organism’ which includes the constitution, the crown, the legislature and the
executive as elements of a larger totality. Or while the new orthodoxy has drawn
a line between Hegel’s critique of the social antagonisms present within civil
society and the resolution of these antagonisms provided by the state, Hegel
presents the state as preserving as well as overcoming the contradictions of civil
society and expresses this idea in the concept of ‘sublation’. At issue here is not
just the difﬁculty of distinguishing those aspects of Hegel’s political philosophy
we approve from those we disapprove, nor just the difficulty of preserving the
integrity of the text as a whole, but the difﬁculty of facing up to the equivocations

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of modern political life. The dimension of Hegel’s Philosophy of Right that I ﬁnd
missing within the new orthodoxy is that illustrated in Walter Benjamin’s
comment in Theses on the Philosophy of History that ‘there is no document of
civilisation which is not at the same time a document of barbarism’ (Benjamin
1968: 256), or in Thomas Mann’s comment that there are not two sides at war,
the evil and the good, but only one which ‘through the devil’s cunning transforms
its best into evil’. It is the dimension of Hegel’s work that German ‘critical theory’
was more alert to.

In any event, if it were true that the instruction Hegel gives in the Philosophy

of Right is to accept the basic rationality of the modern political order, to outlaw
all forms of revolutionary criticism, to make the idea of the rational state the only
standard of judgement against which to measure existing states, to treat social
theory as a necessary aid in revealing the rationality of a world experienced as
oppressive – if all this were true, then the outrage expressed by the ‘old orthodoxy’
might well be more appropriate than the current urge to rehabilitate Hegel’s
philosophy of right. The strength of the old orthodoxy lay in the outrage it
expressed over the violence of the modern state: it was wrong in its assessment
of Hegel but its defence of individual right does not thereby lose its validity.
The new orthodoxy exposed the limitations of the old reading of Hegel, but it
has somehow lost the nerve of outrage against the violence of the state. From the
misplaced outrage of the old orthodoxy to the increasingly uncritical pronounce-
ments of the new, liberalism itself remains strangely unquestioned. One declares
that Hegel was an enemy of liberal values, the other that he was their champion.
Both treat liberalism itself as the standard against which the text must be judged.
Neither puts at risk the liberal view of the world. We may conclude that there
has been no single path of progression in our reading of this elusive text.

Critical theory

Today, the doctrines exalting the state, notably Hegelianism, have been
thrown overboard . . . Hegel’s idea of the state is basically incompatible
with the German racial myth. Hegel asserted the state to be ‘the
realisation of reason’ . . . Hegel’s theory is rational; it stands also for the
free individual. His state is predicated upon a bureaucracy that guarantees
the freedom of the citizens because it acts on the basis of rational and
calculable norms.

(Neumann 1986: 171–2)

Against the charge of fostering totalitarianism levelled against Hegel by the old
liberal orthodoxy in the inter-war period, critical theory defended Hegel on the
grounds that Hegel’s rational concept of the state was incompatible with the ideas
of Volk and Führer which infused National Socialism. It was argued that Hegel
and fascism were impossible bedfellows: why? because Hegel offered a doctrine of
the state supremacy and this doctrine was abandoned in Germany when the

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claims of the Nazi movement conflicted with the claims of the state. For the
Nazis, the state represented not an end in itself but a means for their movement,
and the idea of the state was subsumed to the authority of the ‘true community’
bound together by blood and soil and subject to no rational norms. According
to the critical theorists, Hegel was attacked because rationality and the right
of subjective freedom remained the basis of his view of the state. For Hegel,
as Herbert Marcuse put it, the state rules civil society; under Nazism civil society
(or at least its most powerful economic and political components) rules the
state.

Critical theory situated Hegel ﬁrmly within the liberal tradition, but its twist

was to indict the liberal tradition itself. It recognised that the aim of Hegel’s
philosophy of right was not to subsume the individual to the power of the state
but rather, as Karl Löwith put it in From Nietzsche to Hegel, to ‘harmonise principles
of political community derived from the ancient polis with principles of individual
freedom derived from modern Christianity’ (Löwith 1967: 240). Löwith read
the Philosophy of Right as a momentous effort to achieve ‘moderation’ in the face
of extremes. In Reason and Revolution Herbert Marcuse read it as an attempt to
construct a form of state which would preserve the rights of property-owners,
resolve the social problems besetting civil society, and embody the universal will.
Marcuse wrote:

The anarchy of self-seeking property owners could not produce from its
mechanism an integrated, rational and universal social scheme. At the
same time, a proper social order . . . could not be imposed with private
property rights denied, for the free individual would be annulled . . . The
task of making the necessary integration devolved therefore upon an
institution that would stand above the individual interests . . . and yet
would preserve their holdings.

(Marcuse 1979: 201)

Reconciliation, moderation, harmony, synthesis . . . these were the keywords that
critical theory associated with Hegel. It was convinced, however, that Hegel’s
attempted reconciliation was spurious. According to Löwith, this was because he
failed to address the social questions that were determining the future of bourgeois
society: ‘how to control the poverty brought about by wealth . . . the progressive
division of labour . . . the necessity of organising for the masses forcing their way
upward . . . the collision with liberalism . . . the increasing claims of the will of the
many . . . who now seek to rule by force of numbers’ (Löwith 1967: 241). Löwith
thought that Hegel displayed the characteristic political naivety of a philosopher
when he stated his belief that modern social antagonisms could be successfully
reconciled by the modern state or even by the Prussian state! Franz Neumann and
Herbert Marcuse were harsher in their judgements. Neumann wrote that Hegel’s
Preface to the Philosophy of Right was an ‘inexcusable paean’ to the Prussian state,
‘the state of broken promises, of disappointed hopes, a state which cared nothing

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for free institutions’ (Neumann 1986). Marcuse also saw extremely authoritarian
tendencies within the Philosophy of Right but he maintained that they were a mirror
of the trajectory of liberalism itself. His argument was this: as the class inequalities
and conflicts endemic in capitalist society were exacerbated, so too the only
solution within the existing conditions was to turn the state into an increasingly
independent power. Marcuse held that it was this practical imperative that
impelled Hegel to betray his philosophy of freedom, and that this betrayal could
not be undone as long as totality was conceived, as he thought Hegel conceived
it, as a ‘closed ontological system, finally identical with the rational system
of history’ (Marcuse 1979: 314). Hegel’s fault, so it seemed, did not lie in his
naivety but in his hard-headed realism: he knew what had to be done if the state
was to achieve the necessary integration in a modern capitalist society.

The only way out, as Marcuse saw it, was to move beyond Hegel’s ‘abstract,

logical, speculative expression of the movement of history’ and detach the dialectic
from its ontological base (Marcuse 1979: 315). Marcuse considered the positive
moment in Hegel’s political thinking to be the discovery that the ‘possibility
and truth’ immanent within the modern state is that of humankind becoming
‘the conscious subject of its own development’. To realise this end, however, he
concluded that it was necessary to foster new forms of individualism (beyond
abstract right), new forms of association (beyond civil society) and new forms
of human self-consciousness (beyond the state). Against the existing system of
‘universal negativity’, Marcuse advanced an ‘affirmative materialism’ which
would privilege the idea of happiness and material satisfaction over that of right
(Marcuse 1979: 294).

Marcuse’s ‘solution’ was premised on destroying and overcoming the actual

system of right which constitutes the modern political order. He turned the key
concepts associated with the system of right (individuality, association, and self-
determination) into abstract ideals whose achievement required the destruction
of the system itself. Marcuse’s colleague, Theodor Adorno, recognised the impos-
sibility of this kind of utopian critique when he argued that Hegel’s speculative
identity of the rational and the actual in the Philosophy of Right proceeded out
of the collapse of all attempts at radical separation between a totally irrational ‘is’
and an abstractly rational ‘ought’. Adorno acknowledged that utopian thinking
may be a ‘necessary moment’ in the evolution of critical consciousness, but he
argued that it leaves the ‘ought’ without substance and the ‘is’ without intelli-
gibility (Jarvis 1998: 169). What appeared to Marcuse as a genuine reconciliation
was premised on an opposition between ‘what is’ and ‘what ought to be’ which
leaves both sides equally empty.

Adorno radicalised Marcuse. In Negative Dialectics he vented the full force of

critical theory’s outrage against Hegel’s ‘betrayal’ and the text reverberates with
phrases which might have put a smile on Popper’s face. He wrote that in the
Philosophy of Right Hegel turned the state into an object of worship, degraded
individuals into its mere executors, dissolved the everyday experience of alien and
oppressive power from an allegedly higher philosophical vantage point, associated

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political ‘fault-ﬁnding’ with an inferior consciousness, disguised decisions of state
as democratic procedures emanating from the will of the people, identiﬁed the
rational individual with obedience to the state, and held that the individual was
always in the wrong whenever he was ‘too benighted to recognise his own interest
in the objective legal norm’ (Adorno 1990: 309). Adorno asserted that Hegel’s
nationalistic doctrine of the ‘popular spirit’ was reactionary in relation both to
Kant’s idea of a cosmopolitan order and his own earlier idea of the ‘world spirit’;
that his degradation of the individual corresponded to the actual indifference
of modern states to the lives of individuals; that his ideology of ‘great men’
corresponded to the actual cult of the leader in modern polities. In an extremely
evocative passage Adorno maintained that the world which the Philosophy of
Right sanctiﬁed, consists of ‘an endless procession of bent ﬁgures chained to each
other, no longer able to raise their heads under the burden of what is’. It is a world
which compresses the particular ‘like a torture instrument’ (Adorno 1990: 345).
And Hegel was the philosopher who ‘with serene indifference . . . opts once again
for the liquidation of the particular’, who nowhere in his work doubts ‘the primacy
of the whole’, and who puts the reﬂective capacity of philosophy into the service
of the state.

The strength of the Philosophy of Right, according to Adorno, lay in its recog-

nition of the increasing dominance of the universal over the particular in bourgeois
society and in its repudiation of the individualistic illusions of liberal thought.
Its vice was to mystify the political primacy of the state over the individual by
translating it into the logical primacy of the universal over the particular in
speculative thought. Adorno’s reading of the text was, however, no less one-sided
than that of the liberal orthodoxies. This may be illustrated by his impatient
dismissal of passages in the Philosophy of Right where Hegel apparently argued in
defence of subjective freedom. For example, Hegel says that ‘a conscience which
makes right a matter of subjective conviction will with good reason consider the
positive forms of duty and law as hostile to itself . . . a dead, cold letter and shackle’;
Adorno replies that the phrase ‘with good reason’ was a mere ‘slip of the pen’,
something that Hegel just ‘blurted out’, and that Hegel was in fact always on the
side of the objective legal norm against individual conscience. Hegel says that
‘from the moral standpoint the urge to be something particular can never be
content with a notion of the universal which demands that individuals must do
only what is prescribed to them’; Adorno replies that Hegel merely ‘blackens’ the
rights of individuals ‘as a form of narcissism – like a father chiding his son, “Maybe
you think you’re something special”’ (Adorno 1990: 329). Adorno announces that
‘social analysis can learn incomparably more from individual experience than
Hegel conceded’ as if Hegel conceded nothing, but it was Adorno who displayed
the real equivocation over the rights of individuals when he grudgingly conceded
that ‘in the face of the totalitarian unison with which the eradication of difference
is proclaimed as a purpose in itself . . . part of the social force of liberation may
have temporarily withdrawn to the individual sphere’ (Adorno 1996: 17). For Hegel
the state could never be an idea before which all individuality must kneel and there

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could be nothing temporary about the relationship between social liberation and
the individual freedom (PR §182

It may not be surprising that Adorno, writing under the shadow of Auschwitz,

saw only the ‘consummate negativity’ of the existing system of right. He could
offer no solution except to face up to it from the ‘standpoint of redemption’ –
perhaps more in hope than expectation that this standpoint would delineate the
‘mirror-image of its opposite’. In a characteristic trope, however, he declared
the impossibility of even this ‘solution’:

It presupposes a standpoint removed . . . from the scope of existence,
whereas we well know that any possible knowledge must not only be ﬁrst
wrested from what is, if it shall hold good, but is also marked for this very
reason by the same distortion and indigence which it seeks to escape.
The more passionately thought denies its conditionality for the sake
of the unconditional, the more unconsciously and so calamitously it is
delivered up to the world.

(Adorno 1996: 247)

There appeared to be no exit. The system of right was fated to produce a world
of chained and defeated figures, walking through social life as in a prison-yard
exercise, and to represent its barbarism in the language of freedom. The over-
coming of the system of right was both an absolute necessity and impossible to
achieve inasmuch as the overcoming would be marked by the same distortions as
that which is overcome. The afﬁliation of freedom to the idea of ‘right’ no longer
had any substance but the divorce of freedom from right offered no way out.
Adorno read the Philosophy of Right as a reﬂection of a totally administered society
in which the individual had become superﬂuous and the universal had become
absolute, and as a recognition that this was a fatality which the modern system
of right could not escape as long as it remained intact. What is revealed in this
account is the sociological aspect of Hegel’s depiction of the system of right as
a social reality and the potentiality Hegel saw for the growth of fanaticism and
barbarism within it. What is lost is any sense of tension, contradiction or other
possible outcomes.

Critical theory accepted that in his youth Hegel was revolutionary in both

political and philosophical terms, and that he was profoundly inspired by the
French revolution. In The Young Hegel Georg Lukacs was only the ﬁrst to point
out how far the young Hegel pre-empted the ways of thinking that the young Marx
was later to echo (Lukacs 1975). The consensus within critical theory, however,
was that the older Hegel came to reject his own earlier radicalism and subsumed
his philosophy of freedom to the authority of the state. This is now a widely held
view. There is disagreement over the precise timing of this rupture. Some locate it
around 1800, when Hegel was about thirty years old, in his shift from an emphasis
on human individuals and political action to a cosmic Geist in which human
beings have no active part to play (e.g. Taylor 1993: 74). Others locate it later

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than 1800, seeing in the Phenomenology of Spirit an echo of Hegel’s earlier radical
themes (e.g. Marcuse 1979: 173). There is disagreement over the causes of
this change: whether it was the result of merely personal compromises (with age
and academic success doubtless playing their part), or of the conflict between
Hegel’s ‘revolutionary method’ and ‘conservative system’ (Marcuse 1979),
or of the conservative nature of the dialectical method itself (Colletti 1973), or
of the aftershocks of revolutionary terror (Habermas 1974). There is disagreement
over the direction of the change: whether it led Hegel to Prussian restorationism
or to a preﬁgurative totalitarianism or less dramatically to what Jürgen Habermas
calls an ‘emphatic institutionalism’. Wherever the dividing line is placed, whatever
reason is adduced to explain it, and however abruptly it is conceived, the consensus
is that Hegel’s later political writings – and especially his Philosophy of Right –
express a movement away from youthful radicalism to at best a naive liberalism
and at worst a deeply authoritarian state-mind. I think (following Rose 1981)
we need to suspend these stereotypical views of a movement from the radicalism
of youth to the conservatism of old age and see instead the unity of Hegel’s oeuvre
if we are to uncover what is valuable in the Philosophy of Right.

New critical theory

Perhaps more than any other critical theorist, Jürgen Habermas has taken up the
challenge of putting the idea of ‘right’ at the centre of contemporary political
thought, and his own magisterial work, Between Facts and Norms, may be read as
an extended commentary on Hegel’s Philosophy of Right. Habermas follows in
Hegel’s footsteps when he expresses his concern that contemporary political theory
is disintegrating into what he calls ‘normative’ and ‘realist’ camps that have
no more to say to one another. The normative approaches of political philosophy
are in danger of losing all contact with social reality and are open to the criticism
that they take insufﬁcient notice of the hard facts that have long contradicted
the self-understanding of the modern constitutional state. The realist approaches
of the social sciences are intent on screening out all normative considerations and
recommend a disillusioning if not downright cynical view of the political process.
They focus only on places where illegitimate forms of power force their way
into the constitutionally regulated forms of right and stress only those tendencies
in the administrative complex to become autonomous of democratic decision
making and to join forces with the social power of organised corporate interests.
If the characteristic mode of political philosophy is normative abstraction,
the characteristic mode of political sociology is that of normative defeatism. The
question Habermas raises is how to bridge the gap between normative and realist
theorising, political philosophy and political science, idealism and empiricism,
in order to make space for the reconstruction of critical thought.

Hegel’s effort to reconcile the rights of individuals with a universal political

community provides Habermas with the starting point from which to reintegrate
private right, public life and political democracy as elements of a coherent whole.

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Habermas argues that this project entails recovering the missing link between the
revolutionary tradition of radical, participatory democracy and the liberal tradition
of natural law theory which was shattered when on the one hand Marxism
discredited the idea of legality and on the other liberalism imposed all manner
of institutional and constitutional constraints on the idea and practices of
democracy.

Habermas seeks to attain what he sees as a new recognition: that

today the individual right and the rule of law cannot be thought without radical
democracy and that radical democracy cannot be thought without the rule of law.
Or to put the same point in another way, private legal subjects cannot enjoy
individual liberties if they do not themselves participate in the process of deciding
what rights individuals should have, and citizens cannot participate publicly in
collective decision making unless they themselves are endowed with legally
defensible private and public rights.

In seeking to work through this project, however, Habermas situates Hegel’s

Philosophy of Right firmly within the natural law tradition. He comments that
‘natural law up to [and including] Hegel wanted to single out normatively the only
reasonable social and political order’. According to Habermas, Hegel only added
an historical dimension to the eighteenth-century conceptual repertoire of natural
law theory and otherwise remained ﬁrmly within its ways of thinking. Hegel, he
says, was still in the business of providing ‘a direct blueprint for a normative theory
of law and morality’, and ‘remained convinced, just like Aristotle, that society
ﬁnds its unity in the political life and organisation of the state’ (Habermas 1997:
1–5). I want to suggest that there is another Hegel whose signature can be read
on the text of the Philosophy of Right – a Hegel whom Habermas cannot or will
not see.

I do not think that Hegel could have added the historical dimension to the

repertoire of natural law since, as he himself recognised, the historical dimension
had already been added to natural law by Adam Smith and the school of Scottish
political economy. After all, Smith’s ‘state of natural liberty’ is achieved self-
consciously at the end of history, not at its beginning. Second, I do not think Hegel
intended to ‘single out normatively the only reasonable political order’ since
the central argument of the Preface in the Philosophy of Right was to reorient
philosophy away from this natural law perspective and toward a ‘scientific and
objective treatment’ of the actual political order. Third, I do not think that
Hegel presents the modern political state as the ultimate principle of political
unity, since the nub of his argument in the introduction to the Philosophy of
Right is that the violence already present in the simplest forms of abstract right
is reproduced, not overcome, both in the internal constitution of the state and
in its external relations with other states.

This is not the place to criticise Habermas’s immense achievement in

reconstructing Hegel’s philosophy of right for our own period, but only to suggest
that Habermas reads Hegel in the way he does because he, Habermas, remains
within the eighteenth-century repertoire of natural law theory. To be sure, he
declares his interest in not offering a direct ‘blueprint’ for a normative theory

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of law, but a ‘guide for reconstructing the network of discourses that . . . provides
the matrix from which democratic authority emerges’ (Habermas 1997: 5).
However, the difference between a ‘blueprint’ and a ‘guide’ is one of degree and
may not be fundamental inasmuch as the latter still aims at providing what natural
law theory has always sought to provide: ‘a critical standard against which actual
practices – the opaque and perplexing reality of the constitutional state – could
be evaluated’ (Habermas 1997: 5). When Habermas reconstructs the Philosophy
of Right for our own time, he approaches it on the basis of his own inheritance
from natural law and it is this inheritance that makes it difficult for him to
recognise Hegel’s far more critical relation to the natural law tradition.

Notes

1 In the Encyclopaedia Hegel distinguished between what is ‘actual’ and what is

‘existent’ by saying that philosophy must know ‘not only that God is actual, the
most actual, indeed alone truly actual, but also that existence in general is partly
appearance and partly actual’. If this is so, then the identity of the actual and the
rational could be read as another way of proclaiming the identity of the rational and
the rational – seemingly a mere tautology.

2 Haller was the political philosopher most closely associated with the Junker aspiration

to re-establish a feudal state and their own overriding authority. Hegel concludes this
discussion with the following comment: ‘On top of all this incredible crudity, perhaps
the most amusing touch is the emotion with which Herr von Haller describes his
inexpressible pleasure at his discoveries: “a joy such as only the friend of truth can feel
when, after honest enquiry, he attains the certainty that . . . he has, so to speak, found
the utterance of nature, the word of God himself ” ’ (PR §258 and fn.).

3 Hegel mentions another ‘abominable law’ which used to give creditors the right to cut

off the ﬂesh of debtors. According to this law, if anyone had cut off too much or too
little, he would incur no consequent legal disadvantage: a clause which Hegel notes
would have beneﬁted Shylock in The Merchant of Venice. The appeal to so-called ‘old
rights’ may be used to justify any old barbarity.

4 Hegel’s target was well chosen. Fries was ‘radical’, but he represented the anti-Semitic,

xenophobic wing of student fraternity politics. He published a pamphlet called On
the danger posed to the welfare and character of the German people by the Jews, in which
he suggested that Jews should be prohibited from establishing their own educational
institutions, marrying Gentiles, employing Christians as servants or immigrating into
Germany. He also wrote that Jews should be forced to wear a distinctive mark on their
clothing and be encouraged to emigrate from Germany (Avineri 1974: 119–20).
Shlomo Avineri had good reason to characterise the political current which Fries
represented as ‘proto-fascist’ (Avineri 1972: 121).

5 According to Habermas, the problem with the traditional view of the socialist project

is that in its design and implementation of a concrete form of life, it forgets that the
participants themselves must ﬁrst reach an understanding of what socialism is and that
the democratic self-organisation of a legal community constitutes its normative core.
Everything then hangs on substance – on what understanding they reach.

6 Habermas argues that there is an intrinsic relationship between the rule of law

and radical democracy: ‘only those laws may claim legitimacy that meet with the
agreement of all citizens in a discursive law-making process that is itself legally
constituted’ (Habermas 1997: 141). He argues that in the ‘post-metaphysical’ context
of the present day, when comprehensive world views and collectively binding ethics

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have disintegrated, democratic procedures for the production of rights and laws form
the only possible source of political legitimacy. Based on the premise that the inte-
gration of differing life-worlds can only be achieved today by ‘the actors themselves
reaching an understanding about the normative regulation of strategic interaction’,
including the question of what rights citizens must mutually grant each other if they
decide to constitute themselves as a voluntary association of legal subjects, the task
he sets social theory is to offer a guide for reconstructing the matrix from which the
democratic processes of forming opinions and preparing decisions can emerge. He
draws the conclusion that the requirements of self-legislation and self-determination
can only be fulﬁlled with a code that implies the guarantee of individual rights, and
by the same token that the equal distribution of these rights can only be satisﬁed by
democratic procedures. This ‘reconstructive’ way of thinking expresses very well
a widely felt desire to reconcile right and democracy, but it is satisﬁed at the cost of
dissolving the actual conﬂicts which exist between the different forms and shapes
of right and of obscuring the distinction between morality and ethical life. It leaves
unspoken what happens to those rights which fail to meet this democratic legitimacy
test but whose actual legitimacy lies in the substance of the freedom they embody;
and equally unspoken what happens to those democratic procedures which fail to
produce this rights-effect. Habermas maintains that it is the freedom that allows
us to deliberate and reﬂect on decisions we ourselves have made that is ultimately
constitutive of democracy, but everything then depends on the substance of such
deliberations. Deliberation is certainly a value, but like any other form of right it is
relative to other forms. The consensus it engenders should not be made into an
absolute standard of right.

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T H E I D E A O F H E G E L’ S

P H I L O S O P H Y O F R I G H T

Now I am ready to tell how bodies are changed into different
bodies.

(Ted Hughes, Tales from Ovid )

Understanding, politics and the task of philosophy

Hegel’s Philosophy of Right is a study of the idea of right as it is conceived and
actualised in the modern age. It explores the various forms and shapes which the
idea of right assumes, how one form and shape of right is transmuted into another,
how these different forms and shapes are connected with one another as elements
of a system of right, and how in the course of such metamorphoses the possibilities
of freedom are enhanced and denied. It is an investigation into the dynamics of
subjectivity – not in abstract but as it is made concrete and real in our own social
and political lives.

The task Hegel sets for a philosophy of right is not to express the author’s own

moral and political opinions concerning what is right and wrong, not to prescribe
‘what ought to be’ but rather to understand ‘what is’. If something is to be discussed
philosophically, Hegel declares, then it will bear ‘only scientific and objective
treatment’ and philosophy will treat with indifference ‘any criticism expressed
in a form other than that of scientiﬁc discussion of the matter itself’ (PR Preface
23). Philosophy is not a statement of the philosopher’s own ‘opinions, feelings
or convictions’; it is not ‘what wells up from each individual’s heart, emotion
and enthusiasm’ (PR Preface 15); its task is that of understanding rather than
prescription. Hegel writes of the Philosophy of Right that:

As a philosophical composition, it must distance itself as far as possible
from the obligation to construct a state as it ought to be; such instruction
as it may contain cannot be aimed at instructing the state on how it ought
to be, but rather at showing how the state, as the ethical universe, should
be recognised.

(PR Preface 21)

Hegel presents the shift of emphasis contained in the Philosophy of Right as
a theoretical leap from one kind of political philosophy to another – from
a philosophy which prescribes what a reasonable political order should be to a
philosophy whose task is to understand what the actual political order is. ‘Hic
Rhodus, hic saltus’ (here is Rhodes, here make the leap).

In case we miss the point, Hegel repeats it in many ways. If a philosopher ‘builds

a world as it ought to be’, he writes, ‘then it certainly has an existence, but only
within his opinions – a pliant medium in which the imagination can construct
anything it pleases’ (PR Preface 22). Philosophy is not about ‘inventing and
propounding yet another theory’ of political community, as if the philosopher
had to imagine that ‘no state or constitution had ever previously existed or were
in existence today, but that we had now . . . to start right from the beginning and
that the ethical world had been waiting only for such intellectual constructions,
discoveries and proofs as are now available’ (PR Preface 12). The task of political
philosophy is ‘the comprehension of the present and the actual, not the setting
up of a world beyond, which exists God knows where – or rather . . . in the errors
of a one-sided and empty ratiocination’ (PR Preface 20). Hegel’s repeated
instruction is to read the Philosophy of Right as a scientiﬁc and objective treatment
of the actual political order rather than as a normative prescription for an ideal
political order. It is in my opinion the inability of commentators to take seriously
Hegel’s instruction on how to read his text that has been at the root of all the wild
and conﬂicting interpretations which have been made of it.

There is nothing uncritical in Hegel’s stress on understanding rather than

prescription. It is not a recipe for quietism, cynicism or indifference in the face
of injustice. I quote:

Reason is not content with . . . that cold despair which confesses that, in
this temporal world, things are bad or at best indifferent, but that nothing
better can be expected here, so that for this reason alone we should live
at peace with actuality. The peace which cognition establishes with the
actual world has more warmth in it than this.

(PR Preface 22)

The peace Hegel seeks with the modern world has ﬁre in its belly. He describes
it as ‘a great obstinacy, the kind of obstinacy that does honour to human beings,
that they are unwilling to acknowledge in their attitudes anything which has
not been justiﬁed in thought’ and he presents this ‘obstinacy’ as one of the great
achievements of the modern age (PR Preface 22). He sees his own ‘science of right’
as a creature of this age in its refusal to accept any dogma or doctrine or given
authority: ‘For such thinking does not stop at what is given, whether the latter is
supported by the external positive authority of the state or of mutual agreement
among human beings, or by the authority of inner feeling and the heart . . .’ (PR
Preface 11). It does not ‘adhere with trusting conviction to the publicly recognised
truth’ nor does it ﬁx any ‘position in life’ on this so-called ‘ﬁrm foundation’. Equally

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it does not turn ‘divergence from what is universally acknowledged as right’ into
an alternative principle of thought (PR Preface 12). When it encounters difﬁculties
in distinguishing what is valid among a variety of opinions, it bases its judgement
on ‘genuine concern for the matter itself . . . the substance of the right and the
ethical’, not on the ‘vanity and particularity of opinions’ (PR Preface 12). It locates
‘genuine thought’ not in an opinion about something but in ‘the concept of the
thing itself’ (PR Preface 14). Hegel’s idea of a ‘science of right’ accepts no prede-
termined authority, whatever its source or however appealing its message. It has
nothing in common either with a positivism that dogmatically identiﬁes ‘what is’
with ‘what ought to be’, or with an empiricism which identifies the appearance
of things with their whole being.

When things are bad in the world, philosophy as Hegel sees it is not a substitute

for changing the world, nor is its task that of interpreting the world, as if the
experience of alienation and domination could be dissolved by some dialectical
slight of hand. The task of philosophy is to ‘comprehend what is, because what is,
is reason’ (PR Preface 21). Using the allegory of the ‘rose in the cross’, Hegel writes:

To recognise reason as the rose in the cross of the present and thereby to
delight in the present – this rational insight is the reconciliation with
actuality which philosophy grants to those who have received the inner
call to comprehend, to preserve their subjective freedom in the realm
of the substantial and at the same time to stand with their subjective
freedom . . . in what has being in and for itself.

(PR Preface 22)

In this imagery I ﬁnd a number of interwoven threads. First, reason is to be found
in the present and not in pure thought. The point, therefore, is to recognise reason
in the real world, not to construct abstract ideals that exist only in the philoso-
pher’s head. Second, the present is conceived as a cross, a world of suffering,
and not as the actualisation of reason. Whatever reason it contains, therefore,
requires the work of recognition. Third, the speciﬁc value of understanding is that
it preserves the subjective freedom of individuals while at the same time attaching
it to the external world, to the realm of the substantial, to what has being in and
for itself. In other words, the activity of understanding the world, which is the
call of philosophy, is at once a resistance to what Hannah Arendt called ‘unworld-
liness’ or the isolation of human subjectivity from the world around it.

Hegel expresses his idea of a philosophy of right in the form of a famous ‘double-

dictum’ or doppelsatz: ‘What is rational is actual; and what is actual is rational’ (PR
Preface 20). In this speculative identity of the rational and the actual, the ﬁrst
proposition indicates that the so-called abstract ideals we place opposite the real
are only the real world reconstructed ‘in the shape of an intellectual realm’ (PR
Preface 23). The proverbial example Hegel gives is that of Plato’s Republic, which
he describes as ‘essentially the embodiment of nothing other than the nature of
Greek ethics’. According to Hegel, the Republic expresses Plato’s recognition that

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‘the ethics of his time were being penetrated by a deeper principle . . . [which]
within this context could appear . . . only as a destructive force’ (PR Preface 20).
This deeper principle was that of ‘free infinite personality’ and from the point
of view of Greek ethics it appeared destructive because the individual’s right to
private property ‘now ﬁlled his entire world’ and the ends which individuals set
before themselves became those of ‘gain, self-maintenance and perhaps vanity’
(PH 157). Compared with ancient virtue, the materialism of the new world seemed
vulgar and the Republic was Plato’s heroic attempt to counteract this force from
above, by invoking the ‘external form of Greek ethics’ and suppressing individual
personality and private property (PR Preface 20). Hegel does not wish to ‘trash’
Plato’s opposition to private property or his struggle to defend Greek ethics; on
the contrary, he argues that it proves Plato’s greatness since ‘the principle on which
the distinctive character of his Idea turns is the pivot on which the impending
world revolution turned’ (PR Preface 20). However, he argues that Plato’s failure
to come to terms with the ‘principle of self-sufficient particularity’ helped to
establish a philosophical tradition which regards ‘the present as vain’, looks beyond
it ‘in a spirit of superior knowledge’, and displays the vanity of its own ‘superior
wisdom’ (PR Preface 21).

Hegel’s second proposition, ‘what is actual is rational’, states that the modern

political world has a rational structure, that its forms and shapes are organised
into a system and that it is intelligible in terms of scientiﬁc analysis. To say that
the modern political world is intelligible is not, of course, to say that it is just
or immune to criticism. It is not to say that there is anything wrong in passing
negative judgements upon it. There is something wrong only when philosophy
‘looks down on the matter in hand with a superior and supercilious air, without
having gone into it thoroughly enough to understand its true nature’ (LPWH 76).
Hegel attempts to reconstruct the relation between philosophy and politics in such
a way that philosophy abandon both its disdain for the actual political world and
its hubris of thinking that it can transform the world in accordance with its own
abstract ideals. Political life is not a void waiting for philosophy to give it meaning
and content. Hegel’s conception of political philosophy does not try to outlaw
our rightful need and desire to oppose ‘what ought to be’ to ‘what is’, but he is
against the presumption that philosophy can deduce ‘what ought to be’ from a
priori conceptions of right or from transcendental principles of history, morality
and language, and then impose this sollen on the rest of us. Hegel’s philosophy of
right preserves the space which separates our understanding of political life from
the practicalities of political action and leaves us free to make our own political
choices. He does not abandon the struggle to bridge the gap between what is and
what ought to be, but he addresses this gap in a way that is designed to forestall
the use of violence, terror and annihilation to bring the ‘is’ in line with the ‘ought’.

The Philosophy of Right is a contribution to the critique of modern political life.

Hegel makes no claim to bird’s-eye wisdom, let alone to absolute knowledge.
‘The owl of Minerva begins its ﬂight only with the onset of dusk’ (PR Preface 23),
he wrote, but he was writing at the dawn of the modern state – at a time when

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the idea of universal freedom had been placed on the political agenda by the great
eighteenth-century philosophes and revolutionaries but actualised either in the
‘fanaticism of destruction’ or in the ‘rational architectonic’ of the modern state.
Never before had such colossal promises of freedom been made and broken, and
it was in the face of both the promises and their violation that Hegel sought to
open up a new seam of political investigation. The key to reading the Philosophy
of Right and to grasping the extent of Hegel’s achievement, is to see that he self-
consciously and decisively broke from the traditional framework of natural law
theory which had dominated ‘western’ political thought from Aristotle to his
day. He was the first to situate the idea of right historically as the achievement
of the modern age, socially as a determinate form of subjectivity, dynamically as
a movement from one form and shape to another without a given end, holistically
as a system of intrinsic connections and critically as a system rent by its own
contradictions. As long as we read the Philosophy of Right in the manner of natural
law, as a prescription for ‘the only reasonable order’ however that order is
conceived, we will never uncover the riches it has to offer.

The idea of right

By the idea of ‘right’ Hegel refers not only to rights in the legal sense of civil rights
as opposed to positive duties, but to a broader ﬁeld of inquiry:

When we speak here of right, we mean not merely civil right, which is
what is usually understood by this term, but also morality, ethics and
world history.

(PR §33

)

The ‘science of right’ explores the various ‘forms and shapes’ which the idea of
right takes in the course of its internal division and self-determination. It conceives
of them as a movement from one form and shape to another, and it sees its own
task as that of discovering the ‘laws’ that govern this movement. The point of
departure for Hegel is abstract right (Recht). He characterises this starting point
as relative in the sense that it is the end-point of a historical process that falls outside
the science of right itself. He argues that this starting point is not demonstrated
on the basis of natural presuppositions or rational deductions (as in natural law
theory), nor is it deﬁned in terms of the determinations of a particular legal order
(as in positive jurisprudence), nor is it an immediate fact of consciousness based on
our own feelings or convictions (as in intuitive theories of law), nor does Hegel
begin with abstract right simply because he ‘must begin somewhere’ or because this
particular starting point can be justiﬁed in terms of its functional utility. Abstract
right is not something ‘suspended in mid-air’; it is a ‘determinate starting point –
the result and truth of what preceded it’ (PR §2). Hegel makes it the starting point
of the Philosophy of Right because it is the simplest and most abstract form of the
modern subject.

T H E I D E A O F H E G E L ’ S P H I L O S O P H Y O F R I G H T

The subject matter of a philosophy of right, as Hegel presents it, is the idea of

right. In the term ‘idea’ Hegel includes both the concept of right and what he calls
its actualisation or existence. The idea of right is the unity of the concept and its
actualisation. Hegel puts the matter thus:

The subject matter of the philosophical science of right is the Idea of right –
the concept of right and its actualisation. Philosophy has to do with Ideas
and therefore not with what are commonly described as mere concepts.
On the contrary, it shows that the latter are one-sided and lacking in
truth. The shape which the concept assumes in its actualisation, and which is
essential for cognition of the concept itself, is different from its form of
being purely as concept, and is the other essential moment of the Idea.
The concept and its existence are two aspects (of the same thing), separate
and united, like soul and body . . . A soul without a body would not be a
living thing, and vice versa. Thus the existence of the concept is its body
. . . the unity of existence and the concept, of body and soul, is the Idea.
The Idea of right is freedom, and in order to be truly apprehended, it must
be recognisable in its concept and in the concept’s existence.

(PR §1)

The concept of right and its existence are equally ‘real’ and each viewed in isolation
from the other is ‘one-sided’ and ‘lacking in truth’. Conceptual thinking considers
only the conceptual aspect and ignores the shapes in which the concept is
actualised; realist thinking considers only the existence of right and knows nothing
of its concept. Like the body and soul of an individual, Hegel writes, the idea of
right contains both concept and existence.

Hegel analyses the forms and shapes of right as a logical progression, starting

from the simplest and the most abstract and moving step by step to the more
complex and concrete. He begins with abstract right and its internal division
into personality, property, contract and wrong. He moves from abstract right to
morality (Moralität) and its internal division into responsibility, welfare and
conscience. From morality he moves to the forms of ethical life (Sittlichkeit)
which include the family, civil society, the state and relations between states.
The family is in turn differentiated into marriage, property and children. Civil
society is differentiated into the system of needs, the system of rights, the police
and the corporations. The state is differentiated into the constitution, the sover-
eign, the executive, the legislature and external sovereignty. International law is
differentiated into treaties between states, war between states and what Hegel calls
the transition from the state to ‘world history’ (Table 2.1). The spheres of ethical
life are further differentiated as shown in Table 2.2. It is a complicated schema,
appropriate to the complications of modern political life. The science of right, as
Hegel sees it, must observe ‘the proper immanent development of the thing itself’
(PR §2). In this process of ‘self-division’ and ‘self-determination’, the concept of
right is not only the beginning but also ‘the soul which holds everything together

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and which arrives at its own differentiation only through an immanent process’
(PR §32). Every form and shape of right develops through an internal process
into the next form and shape of right, thus displaying them all as a connected
series or system. The ‘higher dialectic’, as Hegel puts it, is the movement of right
through its various ‘concepts and shapes’. As the movement of right from one form
and shape to another, the dialectic is not an ‘external activity of subjective thought
. . . but the very soul of the content which puts forth its branches and fruit
organically’ and which thought merely observes (PR §31). The ‘science of right’
is not content with describing the outward appearances of this movement; its
aim is rather to detect the ‘inner pulse’ that beats within the wealth of forms,
appearances and shapes that constitute the ﬁeld of right as a whole (PR Preface
21). Nor does it presuppose some resultat at the end of this journey, some ﬁnal
moment of reconciliation, be it a teleology of progress culminating in the modern
state or a cosmopolitan global order or a teleology of regress culminating in
barbarism and destruction. In Hegel’s philosophy of right we are presented with
a radically incomplete drama of human struggle. In this dialectic the pulse of
freedom does not stop beating.

Hegel’s ‘higher dialectic’ contrasts with the ‘vulgar dialectic’ (the famous triad

of thesis, antithesis and synthesis) he discerned in natural law theory. Put at its
simplest, the thesis or positive moment of natural law is the idea of abstract right
and its embodiment in personality and private property. The right of property is
associated with liberation from relations of personal dependency, the freedom to
use and abuse one’s own property as one wishes, the legal equality of property
owners, the wealth of nations, etc. The antithesis or negative moment consists in the
clash of interests which occurs when individuals, as owners of private property,

T H E I D E A O F H E G E L ’ S P H I L O S O P H Y O F R I G H T

Table 2.1 Transition from abstract right to the modern state

Abstract right

Morality

Ethical life

Personality

Responsibility

Family

Property

Intention

Civil society

Contract

Conscience

State

Wrong

Relations between states

Table 2.2 Spheres of ethical life

Family

Civil society

State

Relations between
states

Marriage

System of needs

Constitution

External sovereignty

Property

System of rights

Monarch

International law

Children

Police and welfare

Legislature

World history

Corporations

Executive

overcome their mutual isolation and associate with one another on the basis of
generalised relations of exchange and contract. The society thus formed, ‘civil
society’, is beset by new forms of social antagonism and systemic contradiction,
including social inequalities, moral corruption, political tyranny and economic
instability. The synthesis or moment of reconciliation, as conceived within natural
law, is achieved through the formation of a rational state designed to unify the
political order as a whole. The rational state guarantees the rights of persons and
their property, reconciles the antagonisms of civil society and provides the space
for popular participation in the general administration of society that is otherwise
missing in an age of private concerns (Fine 1985: ch. 1). Many commentators treat
the Philosophy of Right as if the schema of natural law theory were also Hegel’s
schema (e.g. Habermas 1997: 1–5), but Hegel objected to the naturalistic
foundations of this schema, to the external ways in which relations between the
different forms of right were conceived, and to the premature sense of completion
it proffered in the idea of the rational state as a unifying force.

Hegel argues that each stage of the movement of right represents the existence

of right in one of its determinations: as personality, property, morality, family,
civil society, the state, representation, etc. Each form represents a distinctive
variety of right and gives determinate shape to freedom. None, however, can be
understood except in relation to the system of right as a whole:

its particular determinations should not be considered in isolation and
in the abstract, but rather as a dependent moment within one totality, in
the context of all the other determinations which constitute the char-
acter of a nation and age; within this context they gain their genuine
signiﬁcance and hence also their justiﬁcation.

(PR §3

)

It is one of the errors of abstract thought to consider a particular determination
– be it private property or the state or civil society or the system of representation
or the constitution – in isolation from the rest, as if right were embodied in this
particular determination alone and all the rest were external to it. The fact that
property, morality, ethics and the interests of the state can come into collision,
indicates that they are all forms of right and relative in relation to one another.
As Hegel puts the matter, ‘only the right of the world spirit is absolute in
an unlimited sense’ (PR §30

). The error of abstract thought is to isolate one

particular form and shape of right from the rest and treat it as privileged. This
tendency is present in political doctrines which privilege either private property
(neo-liberalism), or the state (ofﬁcial socialism), or the system of representation
(radical democracy), or the bureaucracy (bureaucratic collectivism), or civil
society (civil society theory), or public participation (republicanism). In every
case, the ‘other’ forms of right are not recognised as such and are viewed instead
as instances of illegitimate power. When battles rage between these different
doctrines, no one can be indifferent to their outcome; but they share a common

T H E I D E A O F H E G E L ’ S P H I L O S O P H Y O F R I G H T

inability to recognise the system of right as a whole and the articulation of these
different forms within the system as a whole.

Hegel’s philosophy of right forgoes the purely historical task of viewing ‘the

emergence and development of determinations of right as they appear in time’
(PR §3

). It explores the logical progression of the forms and shapes of right which

may or may not coincide with their order of historical emergence. The develop-
ment from the most abstract to the most concrete forms of right is a conceptual
sequence which may or may not coincide with the temporal sequence of their
actual appearance. For instance, the family certainly comes into existence before
private property, but private property is nonetheless dealt with ﬁrst on the ground
that the family, as it is in the modern world, is only ‘the subsequent and further
stage (of the concept of abstract right), even if it should itself come first in
actuality’. Hegel describes his own methodology thus:

We merely wish to observe how the concept determines itself, and we
force ourselves not to add anything of our own thought and opinions.
What we obtain in this way, however, is a series of thoughts and another
series of existent shapes, in which it may happen that the temporal
sequence of their actual appearance is to some extent different from the
conceptual sequence. Thus we cannot say, for example, that property
existed before the family, although property is nevertheless dealt with
ﬁrst. One might accordingly ask at this point why we do not begin with
the highest instance, that is, with the concretely true. The answer will
be that we wish to see the truth precisely in the form of a result, and it is
essential for this purpose that we should ﬁrst comprehend the abstract
concept itself. What is actual, the shape which the concept assumes,
is therefore from our point of view only the subsequent and further
stage, even if it should come ﬁrst itself in actuality. The course we follow
is that whereby the abstract forms reveal themselves not as existing for
themselves, but as untrue.

(PR §32

)

The word ‘untrue’ at the end of this passage indicates that the point of departure
may not be what comes ﬁrst in time but that it is determined by what constitutes
the most abstract and simple forms of the modern age. When Hegel says that
the notion of a person possessed of free will is the first form of modern subjec-
tivity, or that property is the first form in which ‘the free will must first give
itself an existence’ (PR §33

), his use of the word ‘first’ is not temporal but

conceptual.

In the course of the self-determination of the idea of right, as both concepts

and shapes change, the concrete institutions of modern political life may appear
to be independent of their origins. But this appearance of independence is illusory
in that the determination of each concept and shape presupposes those deter-
minations from which it results. The starting point should not, therefore, be the

T H E I D E A O F H E G E L ’ S P H I L O S O P H Y O F R I G H T

‘highest instance’ or the ‘concretely true’, such as the state itself, because it is itself
the result of many determinations and can only be understood if we break it down
into its simpler and more abstract elements. ‘Sublation’ (Aufhebung) is the name
Hegel gives to the movement from the simple and abstract to the complex and
concrete. It indicates that the characteristics belonging to the simpler forms (say,
private property) enter into the higher forms (say civil society) and that the
relation between them is intrinsic, not external. The relation between the simpler
forms and the more complex is not merely one of progression, as if the state is a
‘higher form of right’ than individual personality; still less is it one of transcendence,
as if the emergence of the state somehow makes individual personality redundant;
nor is it one of reconciliation, as if the state resolves the conﬂicts and contradictions
that previously tore civil society apart. The use of the term ‘sublation’ indicates
a relation between preservation and transcendence in which both sides are kept
in mind: it indicates that the contradictions present within the simpler forms
of right are preserved as well as transcended in the more complex. The contra-
dictions present in abstract right enter into civil society, those present in civil
society enter into the state, those present in the state enter into the cosmopolitan
order.

The movement of right is complicated by the inversions suffered by the

presuppositions of the state once they become in the course of their development
objective moments of the state itself. When the simple and abstract changes into
the complex and concrete, the former becomes in turn determined as that which
the latter has posited. What originally appears as the presupposition, now appears
as that which is itself posited. Thus originally the state presupposes civil society,
but after the formation of the state it is the state which posits civil society as a
moment of its own existence. It is now civil society that presupposes the state and
it is only when this is the case that civil society can attain its own full development
(PR §182

). Rights which originally appear to belong to us by virtue of our

personality become the property of a legal system whose prerogative is to enact,
adjudicate and enforce our rights and punish those who violate them. The subject
who starts life as the autonomous, self-directing atom of natural law theory,
becomes in the course of this movement a bearer of rights whose actualisation
depends on the legal system. All the differences between natural right and legal
positivism have their origin in this dialectic. As Hegel puts it, ‘Natural law
or philosophical right is different from positive right, but it would be a grave
misunderstanding to distort this difference into an opposition or antagonism’
(PR §3

). The mutation of positive law into the state can create all manner of

confusion when properties belonging to state law are attributed to law as such, or
when properties belonging to state law are attributed to the state as such. The form
is identical in each case, so that from the juridical point of view either the law
appears as something posited by the state or alternatively the state appears to be
no more than a sum of laws. The effect is particularly disorienting when the ills
of the modern state are loaded on to the legal form or when the virtues of the legal
form are projected on to the modern state.

T H E I D E A O F H E G E L ’ S P H I L O S O P H Y O F R I G H T

The task of the philosophy of right, as Hegel presents it, is not to dissolve the

experience of domination, nor to declare that at some deeper level we have
consented to whatever the state commands, nor to say that the experience of
oppression is merely superficial on the grounds that the concept of the state
is invisible to natural consciousness, nor to embrace a ‘dialectic’ which, as Hegel
puts it, ‘takes an object, proposition, etc., given to feeling or to the immediate
consciousness in general, and dissolves it, confuses it, develops it this way and that,
and is solely concerned with deducing its opposite’ (PR §31). The dialectic is the
movement of right. To understand it is to explain the experience of subjection,
not to annul it from a higher philosophical standpoint. The state is not the
endpoint of freedom or the culmination of the idea of right, it is not the telos at
the end of any line of progression, and nothing would be more ridiculous than
to invert this logic and see the movement from abstract right to the state as a fall
from grace or as a step which can and should be retraced. The movement from
an initial stage of freedom, as the right to do as you please with what is yours
congruent with the freedom of others to do as they please with what is theirs, to
the actualisation of freedom in a concrete political form, cannot be reversed or
undone.

The fetishism of the subject and the total state

Hegel’s philosophy of right at once embraces the right of subjective freedom as
the supreme achievement of the modern age, and it stands in opposition to
a subjectivism which fetishises the subject, converts it into the absolute and ﬁxes
on this moment in its ‘difference from and opposition to the universal’ (PR §124

Hegel’s insistence that the goal of a free mind is to ‘make freedom objective’ has a
twofold meaning: on the one hand, it indicates that the right of subjective freedom
is not merely an idea but has to be actualised in the world as something substantial
and politically real; on the other hand, it indicates that pure subjectivity – i.e. the
metamorphosis of the subject into an independent power, supreme in status,
unrestricted by any spiritual or material constraint – is not the goal of a free mind.
For Hegel, the distinction between subjectivity and subjectivism (or the fetishism
of the subject) is crucial. If the former is the greatest achievement of the modern
age, the latter constitutes its characteristic pathology. The subject becomes ‘like
a God’. It presents its will as absolute. It demands worship. What starts life as a
principle of critical thought becomes in the course of its own development a new
source of superstition and subjection.

Nowhere is the importance of this distinction between subjectivity and

subjectivism drawn out more sharply than in Hegel’s analysis of the subjectivism
of the modern state. In the system of right, the state represents freedom in its
most concrete form, inasmuch as ‘the momentous unification of self-sufficient
individuality with universal substantiality takes place’ within it, and for this reason
is ‘superior to the other stages’ of right (PR §33

). However, Hegel does not

present the modern state as the completion or culmination of ethical life. He

T H E I D E A O F H E G E L ’ S P H I L O S O P H Y O F R I G H T

demonstrates rather that the concept of the modern state is itself irrational, one-
sided, untrue. It presents itself as an earthly God, as having God-like characteristics.
It assumes its own divinity and demands to be worshipped. It equates itself to the
power of reason itself. This is the language of megalomania. The state does not
appear as what it is, a form of right relative to other forms, but as the Absolute.

The essential contradiction of the modern state, as Hegel presents it, does not

lie in the difference between the concept and its actualisation but in the concept
itself. The difference between the concept of the state and its actual ‘disﬁgure-
ments’ is not a difference to be overcome in the name of the concept. We cannot
take the concept of the state to be rational and ideally given, and then criticise or
transform the existing state from that standpoint, for it makes no sense to try
to bring empirical reality up to the level of the concept if the concept itself is
irrational, untrue and one-sided. When Hegel declares that the idea of the state
is the unity of its concept and existence, he does not mean that the existing state is
only realised to the extent that it realises its concept, as if the latter alone comprises
its essential being or rational structure. On the contrary, if the distance between
the concept and existence of the state is treated as a deﬁciency to be overcome in
the name of their rational identity; this will not dispel the political illusions of our
age but replicate them in their most irrational form. The pretension of the modern
state to be ‘absolute’ is already dangerous enough without political philosophy
demanding that all obstacles to the realisation of this pretension be overcome.

The Italian idealist philosopher, Giovanni Gentile, may serve to illustrate what

Hegel opposed. He thought that he was drawing on Hegel’s Philosophy of Right
when he coined the term ‘totalitarianism’ in the 1920s to express the actuality
of ‘total freedom’ in which the self-realisation of the individual is identiﬁed with
the universality of the state and the state itself is seen as ‘comprehensive,
all embracing, pervasive . . . total’ (Bellamy 1988). Gentile criticised Hegel for
having an a priori view of individual right and sought to overcome what he
saw as a rationalistic conception of atomised individuals still surviving within
Hegel’s philosophy. For Gentile, Hegel may himself have been a liberal but his
conceptualisation of the state provided the resource for a far more radical, i.e.
totalitarian, conclusion. He argued that it was above all Hegel who had the insight
that the state is the one true subject and that the our self-realisation as individuals
consists in our identity to the state. My will is subordinate to the state only to the
extent that it is identical to it, he wrote, I want what the law wants me to want
(Gentile 1961). Gentile turned Hegel’s depiction of the ‘God-like’ concept of the
state, as the ‘divine idea as it exists on earth’, into an ideal to be actualised and
named the philosophy which undertakes this task ‘actualism’. In so doing, he
turned Hegel’s argument on its head.

In the Philosophy of Right Hegel demonstrated the ‘immense contradiction’

present in the idea of the modern state, the madness that lies within the heart of
reason. Mere conceptual thinking forgets that the concept of the state, taken in
isolation from its content, is ‘untrue’ and ‘one-sided’, and in its active, political
form the attempt to actualise the concept of the state is necessarily consumed in

T H E I D E A O F H E G E L ’ S P H I L O S O P H Y O F R I G H T

an endless destruction. Gentile’s ‘actualism’ was precisely what Hegel warned
against: a way of thinking which sought to actualise the divinity of the state and
thus make man master of his own fate. From this standpoint, the manifold
guarantees provided by the system of right appear only as a limitation on the
‘divine idea’ and therefore as something to be overcome. Gentile himself may have
still retained an idea of the ‘rational architectonic’ of the state, though not of
individual right, but the more radical totalitarian mind was ready to take this line
of reasoning further – beyond and against the very idea of the state. Hegel
discerned the destructive potencies of the modern state, of which ‘totalitarianism’
was one exemplar, and even if he could not imagine the full extent of its capacity
for destruction, he had a profound sense of the struggle between the modern
Leviathan and the equally modern Behemoth.

The moral point of view: the ‘fanaticism of destruction’

Abstract reflection may turn the idea of ‘doing as you please’ into
the main aim of life, or it may view morality as a perennial and hostile
struggle against one’s own satisfaction, as in the injunction ‘Do with
repugnance what duty commands’ (Schiller), or it has a view of biography
which ﬁxes on the subjective side of great individuals, i.e. those passions
which are declared in advance to be inherently inferior, and overlooks
the substantial element.

(Adapted from PR §124

)

Nowhere in his Philosophy of Right was Hegel’s foreboding of future catastrophe
more evident than in his discussion of morality. In the system of right Hegel places
Morality before the emergence of Ethical Life and after Abstract Right. He does this
because morality presupposes a consciousness on the part of individual subjects that
their decisions depend not on any outside power but only on themselves, and is
not yet attached to the institutions of ethical life. Hegel argues that the moral point
of view came into being with Christianity but was developed only in modern times.

It was Kant’s great achievement to articulate this viewpoint and show that the

determinations of the will are a matter for itself alone and not for any external power.
Kant sought to demonstrate that the moral point of view comes into being when
‘the will contains the element of pure indeterminacy . . . in which every limitation,
every content, whether present immediately through nature, through needs, desires
and drives, or given and determined in some other way, is dissolved’ (PR §5). Hegel
called this the ‘limitless inﬁnity of absolute abstraction, the pure thinking of oneself’,
and he formulated the principle of ‘pure indeterminacy’ as follows:

This subjectivity, as abstract self-determination and pure certainty of
itself alone, evaporates into itself all determinate aspects of right, duty and
existence, inasmuch as it is the power of judgement which determines
solely from within itself what is good in relation to a given content, and

T H E I D E A O F H E G E L ’ S P H I L O S O P H Y O F R I G H T

at the same time it is the power to which the good, which is at ﬁrst only
an idea and an obligation, owes its actuality.

(PR §138)

There is of course nothing wrong, and Hegel saw nothing wrong, in looking
inwards in order to determine what is right from within oneself. Such self-
determination is the life-enhancing consequence of those epochs in which ‘what
is recognised as right and good in actuality and custom is unable to satisfy the
better will’ and appears to have no value. Socrates provides an early exemplar
of this moral subjectivity at a time when ancient democracy was falling into ruin
and becoming increasingly ‘hollow, spiritless and unsettled’. Socrates ‘evaporated’,
to use Hegel’s term, all determinate aspects of rights, duties and existence, and
retreated into himself to search for the right and the good. Hegel saw it as the
strength and depth of our own times that ‘reverence for the existing order is in
varying degrees absent’ and that people seek to ‘equate accepted values with their
own will’ (PR §§138

and 138

Hegel maintained that this negative freedom contains within itself ‘an essential

determination and should therefore not be dismissed’; but he also held that it is a
defect of the understanding to treat this ‘one-sided determination as unique and
elevate it to supreme status’ (PR §5). Contradiction arises when subjectivity
becomes the sole and exclusive principle of self-determination and when the will
turns to pure inwardness. Once self-consciousness acquires the formal right of self-
determination, it can show that everything we normally recognise as right or good
is ‘null and void, limited and in no way absolute’. Everything then depends
on what content self-consciousness gives to itself (PR §138

). As long as I am

inactive and do nothing, I rest content with this awareness of freedom within me.
As soon as I proceed to act and look for principles, I reach out for determinations
deduced purely from the concept of free will itself. This is the principle that Kant
expressed when he wrote that the individual consciousness must make self-
determination into its principle. Everything else must be ‘vaporised’ and re-formed
into a new determination – even if the new determination turns out to be a replica
of the old.

According to Kant, the individual self-consciousness must turn ‘the universal

in and for itself’ into its principle. Kant’s definition of right declares that the
essential element of right is ‘the limitation of my freedom or arbitrary will in such a
way that it may coexist with the arbitrary will of everyone else in accordance with
a universal law’ (PR §29). Hegel observed that the individual self-consciousness
could equally well give precedence to the ‘arbitrariness of its own particularity’
and thereby become capable of being ‘evil’ (PR §139). The capacity for evil is
present within the moral point of view because morality and evil have a common
root in the ‘self-certainty’ with which the question of right is resolved (PR §139

The moral point of view and evil are not opposites; the triumph of the one does
not presuppose the suppression of the other. I may refuse to commit myself to any
determination at all, in which case I remain suspended in indeterminacy, but

T H E I D E A O F H E G E L ’ S P H I L O S O P H Y O F R I G H T

equally well I may try to destroy whatever determination I make in the belief
that all determination is a limitation on my freedom and that indeterminacy is
the only true freedom. The Kantian deﬁnition of right contains only a negative
determination, that of limitation by the arbitrary will of others, and it can naturally
give rise to the demand that all such limitations be abolished. In this case, what
is advanced as ‘rational’ appears as a limitation on my freedom, as an ‘external and
formal universal’ which must be overcome.

Where the essential element of freedom appears as the possibility of abstracting

from every determination in which I ﬁnd myself, freedom becomes the ‘freedom
of the void’ and it is this freedom of the void which is raised to the status of an ‘actual
shape and passion’. In its theoretical aspect, it becomes the ‘fanaticism of pure
contemplation’ (as in the meditative dimension of Hindu religion). In the more
active realm of politics and religion it becomes the ‘fanaticism of destruction’,
destroying the existing social order, destroying individuals regarded as suspect,
destroying any determinate organisation which attempts to rise up anew. It is only
in destroying something that this negative will has a feeling of its own existence.
It may believe that it wills some positive condition, such as universal equality or
a properly religious life or a new world order, but it does not in fact will the positive
actuality of this condition because this would gives rise to some kind of insti-
tutional order and the negative self-consciousness demands the annihilation of
every objective determination. Every positive determination of freedom appears
as an alien form of representation, so that the actualisation of freedom can only
be done through the fury of destruction. The example Hegel gives is that of the
Reign of Terror in the French Revolution:

This was a time of trembling and quaking and of intolerance towards
everything particular. For fanaticism wills only what is abstract, not
what is articulated, so that whenever differences emerge, it ﬁnds them
incompatible with its own indeterminacy and cancels them. This is
why the people, during the French revolution, destroyed once more the
institutions they had themselves created, because all institutions are
incompatible with the abstract self-consciousness of equality.

(PR §§5

and 5

)

Fanaticism does not arise from my capacity to cut myself off from everything,
even from my own life, for it is in this reﬂective power of thinking that I distin-
guish myself from my animal-existence. The danger lies rather in elevating
negative freedom to ‘supreme status’. Self-determination becomes ‘sheer restless
activity which cannot yet arrive at something that is’ (PR §108

). ‘What is’ is,

therefore, devalued against ‘what ought to be’ and appears worthless, ﬁt only for
destruction.

If I do reach some kind of conclusion, as Kant did in the maxim that the

principle of my action must be the universal law, this may be a pure formalism
without content, a preaching of duty for duty’s sake which offers no criteria for

T H E I D E A O F H E G E L ’ S P H I L O S O P H Y O F R I G H T

deciding whether a speciﬁc action is or is not a duty, in which case any criminal
line of conduct may be justiﬁed. Or it may be given a more determinate content
which relates to my ‘natural, subjective existence – my needs, inclinations,
passions, fancies, in short, my happiness’. Happiness is a relationship in which
I count as ‘something particular’ and the content of my natural existence makes
its appearance (PR §123

). To make happiness my end, therefore, is to recognise

that I am a living being and that I have the right to satisfy my needs as a living
being. There is nothing wrong in this – ‘nothing degrading about being alive’, and
in any case the alternative of ‘existing in a higher spirituality’ is not available
to us (PR §123

). From the moral point of view, however, the determinations

of happiness are not true determinations of freedom. They are either despised,
as if there were something degrading about being alive and wanting happiness,
or they are treated as if they were true determinations of freedom. In the latter
case, I pass off my own inclinations, needs, passions and fancies as if they were
the good and the universal. This turns into hypocrisy when imposed upon others
and a form of ‘absolute subjectivity’ when imposed upon myself. I may become
convinced that the goodness of my will consists only in willing the good and that
to will anything else, including the satisfaction of my inclinations, is bad; or I may
adopt the view that my conviction that something is good and right determines its
ethical character; or I may mystify everything by presenting the authority to which
my duty is owed as the product of a free mind and by declaring that in doing my
duty, I am free (PR §133

From reading Hegel’s discussion of morality in the Philosophy of Right, the

conclusion we are invited to draw is that there is a deﬁnite connection between
the ‘moral point of view’ and the fanaticism of destruction. If ‘what is’ is devalued
against ‘what ought to be’, if duty for duty’s sake is emptied of all content,
if subjective conviction becomes its own justiﬁcation, if subjectivity only knows
itself as the absolute, and if freedom lies in the destruction of all that is determinate,
then there arises the capacity for ‘evil’.

Hegel’s argument is provocative and

radical. It is that evil is rooted not so much in the suppression of morality or in its
subordination to instrumental rationality (Bauman 1990), but in the moral point
of view itself or more precisely in the elevation of the moral point of view to a
supreme status within the system of right as a whole. The moral point of view is
a creature of our age. Born of abstract right, it surpasses the limitations of private
property and individual personality in the sphere of self-reflection and self-
determination and so reaches the ‘higher ground’ of freedom. What Hegel argues,
however, is that on this higher ground where morality prevails, there are also sown
the seeds of something far more troubling: the dark clouds of a thoroughly modern
barbarism to come.

Notes

1 A useful analogy could here be made between Hegel’s analysis of the difﬁculties in

distinguishing between law as law and law as state law and Marx’s analysis of the

T H E I D E A O F H E G E L ’ S P H I L O S O P H Y O F R I G H T

difﬁculties in distinguishing between money as money and money as money-capital.
See Hiroshi Uchida (1988) and Fine (1985: ch. 6).

2 Hegel comments: ‘This is the view of “those psychological valets de chambre” for whom

there are no heroes, not because the latter are not heroes, but because the former are
only valets de chambre.’ This is a reference to the French saying: no man is a hero to his
valet de chambre. Fries offered a good example of the valet de chambre viewpoint when
he wrote: ‘Morality of character consists in the will’s subjecting itself to the higher law
with pure respect. Someone might show reﬂectiveness, patience and tranquillity,
valour and moderation, yet without being led by any idea of the good. Rather such
a reﬂective steadfastedness will be proper to the most dangerous characters in history,
who are ruled by crude ambition and lust for power’ (Jacob Fries, Handbuch der
praktischen Philosophie, Heidelberg: Mohr and Winter, 1818, cited in Wood 1991:
424).

3 Hegel’s analysis of ‘evil’ is often misread as a theodicy. It deserves a fuller treatment

than is possible here, but the key to Hegel’s analysis lies in the proposition that the
origin of evil lies in the ‘mystery’, i.e. the speculative aspect, of freedom when it
emerges from the natural phase of the will and adopts a character of inwardness
in relation to it. Hegel derives ‘evil’ from the opposition between the will’s natural
phase and its inwardness, for the will’s inwardness can derive its content only from
the determinations of the natural will – from desire, drive, inclination, etc. This
understanding of evil, as Hannah Arendt appreciated, is rooted in the conﬂicts
characteristic of the modern political world.

T H E I D E A O F H E G E L ’ S P H I L O S O P H Y O F R I G H T

H E G E L A N D K A N T

Natural law and the science of right

Hegel’s science of right

Kant and Hegel had this in common: that they both put the recognition of right
at the centre of their political thought. We may, however, pursue how Hegel
undertook the task of ‘recognising precisely what right is’, by considering what
Hegel did not mean, that is, by re-examining his relation to the natural law
thinking of Kant. In contemporary commentaries, the relation between Hegel’s
Philosophy of Right and Kant’s Metaphysics of Morals remains very much in question.
One version, which corresponds roughly to what I have called the ‘old orthodoxy’,
is to read Hegel’s critique of Kant as symptomatic of Hegel’s own anti-rights,
anti-liberal, anti-cosmopolitan and anti-humanist convictions. Another, which
corresponds roughly to what I call the ‘new orthodoxy’, emphasises Hegel’s debt
to Kant and on this basis seeks to reconstitute him as a liberal thinker in the
natural law tradition.

My own argument embraces a third possibility: that Hegel

did construct a critique of Kantian natural law – one that was neither illiberal
nor anti-rights but on the contrary pushed Kant’s ‘critical philosophy’ beyond
the rather narrow conﬁnes of criticism which Kant himself permitted.

In an earlier essay On the Scientiﬁc Ways of Treating Natural Law (1802) Hegel

distinguished two camps in modern natural law theory, ‘empirical’ and ‘formal’,
and expressed his dissatisfaction with both. He argued that the governing principle
of the formalists was the a priori of reason and of the empiricists the a posteriori of
experience, but both turned isolated individuals as they appear in modern civil
society into a starting point and hence into a condition of all political cohesion.
Eighteenth-century natural law theory asked philosophy to choose between
‘empiricism’ and ‘theory’, but in the first case philosophy was swallowed up in
experience and in the second it was abstracted from experience. The result was
the same: each wing of natural law posited a ‘true absolute’ in what was only
a one-sided ‘negative absolute’ (Hegel 1975a: 75). In order to bring life back into
philosophy, Hegel maintained that we must no longer regard the system of right
as ‘absolute and eternal’ but see it for what it is, as ‘wholly ﬁnite’ (Hegel 1975a:
102).

Hegel’s project was to construct for the ﬁrst time a ‘science of right’. But what

is a science of right and how is it to be constructed? According to Hegel, we must

take our cue from the natural sciences and their ways of understanding the natural
world. Observing that in the natural sciences it is uncontentious that ‘the
philosopher’s stone lies hidden . . . within nature itself’, but that in political science
the philosopher’s stone still seems to lie within our own heads, Hegel challenged
this account of the opposition between natural and social science (PR Preface 12).
He argued that a science of right ought to study laws of right in roughly the same
way as the natural sciences study laws of nature. It should recognise that both the
laws of right and the laws of nature are ‘external to us’ and that our cognition
‘adds nothing to them’ (PR Preface 13). Hegel acknowledged that there are major
differences between these different kinds of law. Laws of right, unlike laws of
nature, are derived from human beings. Their diversity shows that they are not
absolute. Unlike laws of nature, they are never valid simply because they exist and
there is always the possibility of conﬂict between what they are and what they
ought to be. Our own inner voice of conscience may or may not come into
collision with them and consequently, when we are subjected to the power of
rightful authority, it is never in the same way as we are subjected to the power
of natural necessity. However, while recognising the importance of these distinc-
tions, Hegel still insisted that the task of political philosophy is to ‘recognise
precisely what right is’ – as something knowable beyond our own feelings,
opinions, convictions and judgement.

Kant’s metaphysics of right

Hegel’s Philosophy of Right was a sustained commentary on and critique of Kant’s
Metaphysics of Justice and the two texts parallel one another in interesting ways.
According to Kant, the idea of right guarantees to individuals freedom from
constraint compatible with the freedom of others. The only obligation it imposes
on individuals is to respect the rights of others. It is the ground on which justice,
universal freedom and the legitimacy of the state are based. Kant presented his
Metaphysics of Justice as a critical philosophy whose starting point is the courage to
think for oneself about what is right. It accepts no substitute for reason, no doctrine
or dogma, no custom or positive law. From this idea of a critical philosophy Kant
drew the conclusion that the determination of right must not be confused with
‘what can be learned from experience’ (MJ Introduction to The Metaphysics of
Morals 15), because the latter would confound what is right with what is merely
the case. Right must be seen, therefore, as having an a priori basis, as a pure concept
of reason, and the discovery of what right is must be based on logical deductions
from the postulates of practical reason alone. Beware, Kant warned, of spurious
a priori reasoning that is ‘basically nothing but experience raised to generality
through induction’:

Instruction in the laws of morality is not drawn from observation of
oneself and the animality within him, nor from the perception of the
course of the world as to how things happen and how men in fact do act

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. . . reason commands how one ought to act, even though no instance of
such action may be found.

(MJ Introduction to The Metaphysics of Morals 15–16)

Kant argued that for the Metaphysics of Justice to be a critical philosophy, it has to
be a system of a priori knowledge which can be applied to the world of experience
but whose application must not detract from the purity of its laws or cast doubt
on its a priori origin (MJ Introduction to The Metaphysics of Morals 16–17). It is
only a priori reasoning that can recognise precisely what right is and any empirical
determination would detract from its validity.

Kant’s method of analysis was that of logical deduction from the juridical

postulates of practical reason. First, he purported to deduce the idea of the ‘person’
(persona). The person is a possessor of rights whose ‘actions are susceptible to
imputation’ and whose ‘moral personality is nothing but the freedom of a rational
being under moral laws’ (MJ Introduction 24). Then he deduced the idea of
a ‘thing’ (res). A thing is ‘an object of free will that itself lacks freedom’ and is ‘not
susceptible to imputation’. Then he deduced the separation of property from mere
possession: ‘an external thing is mine . . . only if I can assume that it is still possible
for me to be injured by someone else’s use of the thing even when it is not in my
possession’ (MJ §1). Then he deduced the idea that there is nothing in the world
which cannot be made into property:

It is possible to have any and every external object of my will as my
property . . . a maxim according to which, if it were made into a law, an
object of will would have to be in itself (objectively) ownerless (res nullius
– property of no one), conﬂicts with Law and justice.

(MJ §2)

Kant placed rights of property within the realm of ‘natural laws’ which he deﬁned
as those laws to which ‘an obligation can be recognised a priori by reason without
external legislation’ (MJ Introduction to The Metaphysics of Morals 26). He argued,
in line with the natural law tradition, that natural laws provide the immutable
principles on which all positive legislation must be based (KPW 132, MJ §

). The

close resemblance between his own deductions and the designation of personality
and property within Roman law served to demonstrate to Kant’s satisfaction the
rationality of a legal system in which rights of personality and private property
constitute its nucleus.

Kant postulated the unity of freedom and coercion. His basic proposition was

that ‘everything that is contrary to right is a hindrance to freedom based on
universal laws’ and that right therefore entails ‘the authority to apply coercion
to anyone who infringes it’ (KPW 134, MJ §

). He presented right as the basis

on which the ‘freedom of everyone’ can be identiﬁed with ‘the law of reciprocal
coercion’ and argued that right depends on and has no existence apart from the
possibility of external coercion. The right of freedom under law is at once a right

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of lawful coercion (KPW 134–5, MJ §

). In his analysis of public law Kant argues

that the movement from the ‘state of nature’ to ‘civil society’ (again Kant uses the
traditional language of natural law theory) is a rational necessity that people must
recognise and accept and which has nothing to do with experience. He conceives
the state of nature as a society in which property rights are already valid because
they are deduced a priori from the postulates of practical reason, but he argues that
citizens must abandon this ‘wild and lawless’ state of freedom in order to ﬁnd their
‘whole freedom’ in civil society. He maintains that civil society draws its laws from
the natural laws of society, but it provides in addition the juridical conditions
under which each person’s property is secured through the formation of public law.
He insists that it is not experience that teaches us that we act in a violent and
malevolent manner to one another in the state of nature and so must construct a
means of public legal coercion; it is rather the ‘a priori rational idea of a non-lawful
state’ that tells us that in the state of nature we can never be secure and that a
‘public and legal state’ must therefore be established (KPW 137, MJ §44). In other
words, for Kant it is a rational necessity that the unilateral will of the property
owners must give way to a ‘collective, universal and powerful Will that can provide
the guarantee required’ (MJ §8). He writes:

the ﬁrst decision the individual is obliged to make, if he does not wish to
renounce all concepts of right, will be to adopt the principle that one
must abandon the state of nature in which everyone follows his own
desires, and unite with everyone else (with whom he cannot avoid having
intercourse) in order to submit to external, public and lawful coercion.
He must accordingly enter into a state wherein that which is to be
recognised as belonging to each person is allotted to him by law and
guaranteed to him by an adequate power . . . In other words, he should
at all costs enter into a state of civil society.

(KPW 137, MJ §44)

From the concept of the person as ‘nothing but the freedom of a rational being
under moral laws’, Kant deduces the principle that ‘a person is subject to no laws
other than those that he (either alone or at least jointly with others) gives to
himself’. The public and legal state, then, is one in which those who are subject
to the law are also its authors. From this ‘Idea of the state as it ought to be’, Kant
then deduces the particular institutional forms of a republican constitution:
a representative legislature to establish universal norms, an executive to subsume
particular cases under these universal norms, a judiciary to determine what is right
in cases of conflict, and the constitutional principle of the separation of their
powers to maintain the distinct spheres of state activity in accordance with ‘the
moments of its concept’ (KPW 138, MJ §45). Kant’s ideal state corresponds closely
enough to a liberal republic in which the law is autonomous, the civil service is
professional and government is based on popular representation.

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With the formation of this ideal state, Kant identiﬁes reason, that is, obedience

to our own laws, with obedience to the laws of the state and conversely identiﬁes
transgression of the laws of the state with disobedience to our own laws.

Originally, sovereignty may have resided directly in the hands of the people, but
Kant maintains that once a republic is instituted, it must no longer ‘let the reins
of government out of its hands and return them to those who had them previously’.
If it did, the people would ‘by their absolute and arbitrary will destroy the new
institutions again’ (KPW 163, MJ §52). Since the legislature is deduced from
the idea of the ‘general united will’, Kant concludes that it can do ‘absolutely no
injustice to anyone’. Whatever it decides, the citizens have already consented to.
Citizens can lodge complaints about unjust laws but Kant stipulates that they
must not resist or disobey them. There can be no such thing as legitimate
resistance, because this would mean that the people want to act as judge of
their own cause – and that, Kant tells us, is ‘absurd’ (KPW 145, MJ §49

). Kant

declares that it is ‘the people’s duty to endure even the most intolerable abuse
of supreme authority’ (KPW 145, MJ §49

), that any alteration required for

a defective constitution may be undertaken only by the legislature, and that no
attempt to coerce the government to act in a certain way is permitted on the part
of ‘an arbitrary association of the people’. If they tried to ‘coerce’ the government,
they would be no better, according to Kant, than a ‘riotous mob’ (KPW 162,
MJ §52).

Kant maintains that the ‘well-being of the state’ refers only to that condition

in which ‘the constitution conforms most closely to the principles of justice’ and
must not be confused with ‘the welfare or happiness of the citizens of the state’.
We have the right and duty to think for ourselves, but for Kant this right is
restricted to ‘the use which anyone may make of it as a man of learning addressing
the entire reading public’ (KPW 55, ‘What is enlightenment?’). Otherwise, as in
the case of an officer receiving a command from his superiors or a clergyman
receiving an order from his church, we must obey. Kant’s critical philosophy
commands everyone to obey the law ‘without regard to his inclinations’ (MJ
Introduction to The Metaphysics of Morals 15) and it dictates that the duty
to obey the law can take no account of the pleasure or displeasure with which
it is combined. Our freedom, as Kant defines it, does not lie in our capacity to
choose for or against the law, but only in our ‘internal legislation of reason’ (MJ
Introduction to The Metaphysics of Morals 28), and the use of coercion is justiﬁed
if this internal legislation leads us astray (KPW 134, MJ §

). Kant argues that

we have the right to force other people into a civil condition if they fail to do
so of their own accord, and once they have entered into a civil condition (whether
voluntarily or under coercion) their binding imperative is to obey the law.
Criminals who violate the rights of others must be punished and since the
authorisation for their punishment comes from reason itself, the humanitarian and
utilitarian arguments put by penal reformers against certain forms of punishment
like capital punishment, should be seen as mere ‘sophistry and a juristic trick’.
Since the deﬁnition of civic personality presupposes a certain capacity for practical

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reason, Kant infers that those who lack this capacity (or are deemed to lack it)
must be excluded from the deﬁnition of civic personality and therefore from rights
of political participation. Kant’s own list of exclusions includes apprentices,
personal servants, minors, women and anyone who depends for support ‘not on
his own industry but on arrangements by others’ (KPW 139, MJ §46).

Hegel’s argument against Kant’s metaphysics of right

The nub of Hegel’s argument is that Kant’s critical philosophy turns out not to be
critical enough. State-consciousness haunts the antechambers of Kant’s discussion
of public law as much as property-consciousness haunts his discussion of private
law. The language of right and freedom is transmogrified into a language of
coercion and necessity. The word ‘must’ pervades the discourse, so much so that
the ﬁrst decision the free individual must make is to submit to external coercion.
The force of this must is all the stronger since the decision is not based on
experience, which could be modiﬁed in the light of new experience, but rather
on an a priori rational law which is binding regardless of our inclinations. The
closer Kant comes to conceptions of personality, property, civil society and
the state as they exist in a modern bourgeois republic, the more he insists that
‘all propositions about rights are a priori, for they are laws of reason’ (MJ §6).
Hegel argues that this insistence hides the spuriousness of Kant’s deductions. What
is in fact a predicate of the state, the idea of the ‘general united will’, is turned
into a mystical subject, while the real subject, the modern state, is turned into
a deduction from this mystical substance. Kant’s concern, according to Hegel,
is simply to rediscover the idea of right in every sphere of private and public law
that he depicts. He gives an empirical account of property and power in modern
constitutional states and uses critical philosophy to convert these empirical facts
into deductions from the postulates of practical reason. These deductions are
spurious because they cannot derive the speciﬁca differentia of particular institutions
from the Idea of the ‘united will’ and because they dress the determinate historical
forms of personality, property, civil society and the state in the cloth of rational
necessity. By presupposing the rationality of bourgeois right, Kant’s Metaphysics
of Justice leaves the world much as he ﬁnds it. His critical philosophy ends up as
an uncritical positivism.

Hegel acknowledged that Kant’s Metaphysics of Justice represented a big step

forward. It advanced the idea of moral laws as laws of autonomy which individuals
impose on themselves and follow for their own sake; the idea of laws of freedom
which the will determines from itself and which express the independence of
reason; the idea of will as the activity of thought which ‘throws off the deﬁciency
of mere subjectivity’ and ‘translates the subjective end into objectivity through
the mediation of activity’ (PR §§8 and 8

); the speculative identity of ‘good

and reality’ as a demand on practical reason which says that ‘the good attains
the “highest good” only when it is realised in external reality’; the analysis of the
movement of right from its simplest form as abstract right to the increasingly more

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complex forms of civil society, the state and the cosmopolitan order. For Hegel,
however, the key to understanding Kant’s Metaphysics of Justice is that freedom is
present only as an abstraction. The postulated harmony ‘is determined as some-
thing merely subjective – as only what ought to be; i.e. what does not at the same
time have reality. It is something believed that can only claim subjective certainty,
not truth; i.e. not that objectivity which corresponds to the Idea’ (Hegel 1991b:
§60). It is as if there are two realms: ‘a realm of subjectivity in the pure regions of
transparent thought’ and ‘a realm of objectivity in the element of an externally
manifold actuality that is an undisclosed realm of darkness’ (Hegel 1993: 11.
231–2). In this duality external reality is a void, without truth or reason, given
meaning by a subjectivity which subsumes it to thought. It is in opposition to
this dualism that Hegel commits himself to the unity of the actual and the rational
and to the transformation of practical philosophy, based on the conviction that
to neglect concrete analysis of the actual political order is to be condemned to an
abstract normativity.

Persons and things

It may appear at ﬁrst sight that personality and property were for Hegel what they
were for Kant: a priori deductions from the idea of practical reason. This reading
seems to be justiﬁed by the fact that Hegel starts his Philosophy of Right with a single
person in a pre-social condition, describes the right of private property as a rational
necessity for humanity, and criticises empirical natural law theories on the ground
that they postulate private property as a merely accidental feature of human history
with a merely external and contingent relation to human freedom. Hegel begins the
section on property with the claim that:

The rational aspect of property is to be found not in the satisfaction of
needs but in the superseding of mere subjectivity of personality. Not until
he has property does the person exist as reason.

(PR §§41 and 41

)

It seems that the ethical signiﬁcance of private property for Hegel lay in its intrinsic
and essential relation to our humanity. If what makes us human is our non-
restriction to natural instincts or to fixed ways of satisfying them, then private
property appears as the mark of a humanity ﬁnally recognised at the end of history
and released from its long ordeal.

This appearance, however, is deceptive. For

Hegel, abstract right is a social form and comes ﬁrst in his exposition because it is
the simplest and most abstract social form of the subject. Historically the notion
of a ‘person’ was ﬁrst developed in ancient Rome when personality was instantiated
as an estate in contrast with slavery, and when rights of property (including
property over slaves) became ‘the first embodiment’ of the relative freedom of
members of this estate (PR §40). In the modern age every human being is now
in principle a person endowed with rights over things, and is obliged to relate to all
other human beings as persons.

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Personality is understood by Hegel as a social form taken by individuals under

given historical conditions and generalised in the modern age. The difference
between Kant and Hegel may be encapsulated thus: if Kant turns individuals as
they appear in our own society into an a priori condition of political cohesion,
Hegel begins with individuals as they are found within our society in order to
denature their form of existence and unpack what is distinctive about the modern
subject.

Hegel maintained that the concept of ‘personality’ marks the distinction

between ‘persons’ and ‘things’, and he criticised the confusion he saw in Kant’s
division of rights into the right of things and the right of persons. He argued that this
division was fundamental to Roman law only because personality was instantiated
as an ‘estate’ or ‘condition’ which contrasted with that of slavery and expressed
its relative freedom (PR §40). In this context rights of property included both
rights over ‘things’ and rights over slaves (and to a large extent children) conceived
as things. The so-called rights of persons in Roman law had to do with slavery and
with dependent family relationships, and Kant only confused the matter further
by categorising these relations under yet another heading, that of personal rights of
a real kind. Kant enhanced this confusion by arguing that rights of persons are those
rights which arise out of a contract in which I agree to give something or perform
a service (in Roman law the ius ad rem which arises out of an obligatio). But a right
based on contract is not a right over a person but only over a thing which a person
disposes of. In his attachment to Roman law, Kant confounds the nature of right
in the modern age – an age in which slavery is abolished, children are no longer
chattels, and everyone is in principle endowed with personality and obliged to
relate to others as persons.

The concept of personality, as Hegel depicts it, expresses the fact that an

individual is conceived as a free spirit who has rights over things and an obligation
to respect others as persons. Freedom constitutes its substance and destiny, but the
freedom in question is abstract. Personality begins where ‘the subject has not
merely a consciousness of itself in general as concrete and in some way determined,
but a consciousness of itself as a completely abstract ‘I’ in which all concrete
limitation and validity are negated and invalidated’ (PR §35

When I say ‘I’, I leave out of account every particularity such as my
character , temperament, knowledge and age. ‘I’ is totally empty; it is
merely a point – simple, yet active in this simplicity.

(PR §4

)

The emergence of personality entails the self-division of the subject: I both know
myself to be free and I have knowledge of myself as an object. I am at the same
time something free and determinate. I am an ‘I’ who is wholly indeterminate, and
I am someone of a particular age, height, religion and class, located in a particular
place, endowed with particular desires. Personality is at once ‘sublime and ordinary’
– the unity of the infinite and the finite. The person has a twofold character,

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a double existence, and Hegel describes it as the supreme achievement of the
modern subject to support this contradiction:

It is inherent in personality that, as this person, I am completely
determined in all respects (in my inner arbitrary will, drive and desire as
well as in relation to my immediate external existence) . . . and know
myself in my ﬁnitude as inﬁnite, universal and free.

(PR §35)

Personality is a form of subjectivity which from the start contains within itself
‘division and opposition’. Since the person is not the living body but the ‘I’ who
owns her own body, then even the death of an individual as a physical being does
not signify the death of the individual as a person. Thus after the death of an
individual, the independence of his or her spirit may be expressed legally through
laws of inheritance which seek out new physical forms of expression: ‘The death
of merely immediate and individual vitality is the emergence of spirit’ (Hegel
1991b: §222).

As a person, I stand in opposition to the world of things – an opposition

which is expressed in Roman law in terms of persona and res. This separation and
opposition fills the world. A thing is anything that is external to my freedom
and into which I can place my will. This includes things in the tangible sense of
the term, e.g. land, corn, bread, machines, money, etc., but equally

intellectual accomplishments, sciences, arts, even religious observances
(such as sermons, masses, prayers and blessings at consecrations),
inventions and the like become objects of contract . . . bought and sold
. . . treated as equivalent to acknowledged things.

(PR §43

)

We may be reluctant to treat knowledge, talent, piety and honour as things, since
they are internal attributes of a human being or processes of personal development,
but in the system of right they are relevant as things. As a person I have the right
to place my will in anything. To the extent that I am an object of the senses
and have a natural existence, I am myself a thing as well as a person. As a person,
I possess my life and body like other things.

All things can become the property of human beings, because the human
being is free will and as such exists in and for himself, whereas that which
confronts him does not have this quality. The will alone is infinite,
absolute in relation to everything else, whereas the other, for its part,
is merely relative. Thus to appropriate something means basically only
to manifest the supremacy of my will in relation to the thing and to
demonstrate that the latter does not have being in and for itself and is
not an end in itself. This manifestation occurs through my conferring

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upon the thing an end other than that which it immediately possessed;
I give the living creature, as my property, a soul other than that which
it previously had; I give it my soul.

(PR §44

)

This split between persons and things puts all freedom and spirit on the side of the
subject and none on the side of the object. As a person, I am or I have free will, but
the only way I can actualise my freedom is through the ownership of things. Property
becomes the ‘ﬁrst existence of freedom’ and an ‘essential end in itself’ (PR §45

The force of the word ‘essential’ is that the actualisation of freedom in property is
not a choice but a determination, and the rational aspect of this determination
is not to be found in the satisfaction of needs but in the superseding of ‘mere
subjectivity of personality’. In the system of right, it is not until I have property that
I exist as a rational human being and give my free will actuality (PR §49).

In the modern world, as opposed to the ancient, all human beings are in

principle persons. If nothing else, we are at least owners of our own lives, bodies
and labour power.

The human being, in his immediate existence in himself, is a natural
entity . . . it is only through the development of his own body and spirit
. . . that he takes possession of himself and becomes his own property as
distinct from that of others . . . this taking possession of oneself consists
also in translating into actuality what one is in terms of one’s concept
(as possibility . . .) . . . what one is in concept is posited for the ﬁrst time
as one’s own . . . and it thereby becomes capable of taking on the form
of the thing . . .

(PR §57)

In the ancient world subjection was expressed in the conﬂict between a person
as a free human being and the institution of slavery, that is, of people who were
not persons. In the modern world, the point of view of the free will goes beyond
that ‘false’ point of view in which the human being exists only as a natural being
and is therefore capable of enslavement. Persons cannot be property and cannot
be enslaved. Thus by asserting the concept of freedom, the modern age refutes
the basis of all historical justiﬁcations of slavery which depend on regarding the
human being simply as a natural resource. As Hegel puts it, the claim that slavery
is contrary to right is firmly tied to ‘the concept of the human being as spirit,
as something free in itself’.

This is familiar ground, but Hegel adds that this viewpoint too is one-sided and

false inasmuch as it regards the human being as by nature free and ‘takes the
concept as such in its immediacy . . . as the truth’. He writes:

This antinomy, like all antinomies, is based on formal thinking which
fixes upon and asserts the two moments of an Idea in separation from

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each other, so that both are lacking in truth and do not conform to the
Idea. The free spirit consists precisely in not having its being as mere
concept . . . but in overcoming this formal phase of its being.

(PR §57

)

The strength of conceptual thinking is that it goes beyond the false appearances
of ‘conceptlesss existence’ in which there is neither rationality nor right; but it
makes no space for ‘objective spirit’, that is, the content of right, and it annihilates
all evidence of conﬂict between the concept of personality and its social existence.

In the system of right every human being becomes a person and the personality

is given existence at least through ownership of one’s own life and body. The
generalisation of abstract right turns my capacity to labour, my labour power, into
a form of property which can itself be bought and sold on the market place. In this
context, subjection is displaced but it is by no means eliminated. The rational
aspect of private property is only that I own property: ‘what and how much I possess
. . . is purely contingent as far as right is concerned . . . equality can only be
equality of abstract persons as such, which thus excludes everything to do with
possessions’ (PR §49). The system of private property remains ‘indifferent to
particularity’. It does not require that everyone’s property be equal, only that
everyone ought to have some property. In this system one cannot speak of an
‘injustice of nature’ in the unequal possession of goods, and the moral wish that
all human beings should have a livelihood and that no one should starve has
‘no objective being’. Thus recognition of one person by another takes the form
of a contract in which owners of property freely exchange the things they own
for other things. In contractual relations anything can be alienated so long as it is
a thing: i.e. that it is not free, not personal, without rights (PR §42). Individuals
cannot alienate themselves if they are to remain persons, but they can alienate
their bodies, their minds and their capacity to labour – in pieces or by the hour:
‘I can alienate individual products of my particular physical and mental skills
and active capabilities to someone else and for him to use them for a limited
period . . . The distinction here is that between a slave and a modern servant or
hired labourer’ (PR §67). The alienation of things (be it labour power or material
things or intellectual property) is not something external to private property, it is
an essential element of what private property is, and the idea of a contract entails
that it is ‘by common will and with due respect for the rights of both’ that
we exchange our goods. The crucial point is that this ‘indeterminacy is itself
determinate’: neither the form nor the terms of the contract are the product of
will.

Hegel argues that within the system of right abstract right is the starting

point for the long and arduous process of education (Bildung) required before
individuality can be realised. Yet the relation of abstract right to the institutions
of ethical life (family, civil society and the state) is not settled once and for all.
If individuality were ﬁxated at a stage of life in which the right of private property
appears as everything, it would in Hegel’s words be ‘trivial’ (PR §35

), ‘false’

N A T U R A L L A W A N D T H E S C I E N C E O F R I G H T

(PR §§41

and 57

), ‘merely formal’ (PR §30

), even ‘contemptible’ (PR §35

The determinations of abstract right do not have to be treated as the exclusive
aspect of social relations. Hegel comments that if someone were interested only in
his or her formal rights, this would be a sign of ‘pure stubbornness, such as is often
encountered in emotionally limited people; for uncultured people insist most
strongly on their rights, whereas those of nobler mind seek to discover what other
aspects there are to the matter in question’ (PR §37

). The determination of right

is one aspect of a relationship but it is merely formal in character compared with
the relationship as a whole. It is a permission or warrant. I do not have to pursue
my rights. The only necessity of right is negative, to respect others as persons
and not to violate their rights, and the development of ethical life presupposes
that there is more to a human relationship than right alone. If I relate to others
and they to me exclusively in terms of rights, then everything which depends on
particularity would become a matter of indifference. As far as other needs are
concerned, indifference would be the only rule.

Hegel argues that although the spheres of ethical life (family, civil society and

the state) are developed forms of abstract right, it would be totally confusing simply
to introduce the idea of a contractual relationship in an unmediated way into the
family or civil society or the state. The right of private property necessarily grows
into a ‘higher sphere of right’ (PR §46

), but once morality, the family, civil society

and the state are brought into the picture, all kinds of restrictions may be imposed
on the rights of property. Thus in his discussion of Morality Hegel writes of how
the right of private property may in extreme situations, where the requirements
of personal survival come into collision with the rights of property, be subsumed
to the ‘right of necessity’. Where the alternatives are on one side a ﬁnite injury to
property and on the other ‘an inﬁnite injury to existence with total loss of rights’,
Hegel wrote that the latter must prevail:

Life as the totality of ends, has a right in opposition to abstract right.
If, for example, it can be preserved by stealing a loaf, this certainly
constitutes an infringement of someone’s property, but it would be wrong
to regard such an action as common theft. If someone whose life is
in danger were not allowed to take measures to save himself, he would
be destined to forfeit all his rights; and since he would be deprived
of life, his entire freedom would be negated. There are certainly many
prerequisites for the preservation of life, and if we look to the future,
we must concern ourselves with such details. But the only thing that is
necessary is to live now; the future is not absolute, and it remains exposed
to contingency. Consequently, only the necessity of the immediate
present can justify a wrong action, because its omission would in turn
involve committing a wrong – indeed the ultimate wrong, namely the
total negation of the existence of freedom . . . no one should be sacriﬁced
completely for the sake of right.

(PR §127

)

N A T U R A L L A W A N D T H E S C I E N C E O F R I G H T

The proposition that no one should be sacriﬁced completely for the sake of rights
of property does not deny the validity of the latter but it reveals its one-sided
and relative character. In his discussion of civil society Hegel writes of how free
contract may be profoundly affected by the norms and goals of the corporations,
notably in relation to welfare for the poor. In his discussion of the state Hegel
writes that the state may in times of war demand a widespread abrogation of
property rights or even the sacriﬁce of life itself (PR §324), and in peaceful times
it makes all manner of exceptions to private property in order to curb the excesses
of civil society (PR §46

). In the system of right there is nothing absolute about

the right of private property when it comes into conflict with the demands
of morality and ethical life, and it would be the mark of an ‘uncultured mind’ to
think that there is something absolute about private property (PR §30

). This

does not mean that private property has no right at all, or that it can be violated
at will, or that it is external to the institutions of ethical life; but it does mean that
the state and other spheres of ethical life not only maintain or restore the right of
private property when it is threatened or usurped, but can and do make exceptions
too. If the state were determined to expropriate all forms of private property,
however, such as we see preﬁgured in Plato’s Republic and actualised in certain
Communist societies, the effect of this expropriation would be to annul one form
of property, that of individual private property, and replace it with another, that
of state property. The abolition of private property by the state would transfer
ownership of all things (including my body, my mind and my capacity to labour)
to the state and the state would emerge as the sole ‘person’ whose personality is
given existence in the ownership of things.

Morality and ethical life

As an empirical description of the system of right, Hegel maintained that Kant’s
Metaphysics of Justice lacked crucial categories and distinctions necessary to
understand the modern political order. Most important, Hegel argued that Kant
had an inadequate understanding of the category of Sittlichkeit (ethical life) or
of the distinction between morality and ethics. Hegel writes:

Morality and ethics, which are usually regarded as roughly synonymous,
are taken here in essentially distinct senses . . . Kantian usage prefers
the expression morality, as indeed the practical principles of Kant’s
philosophy are confined throughout to this concept, even rendering
the point of view of ethics impossible and in fact expressly infringing
and destroying it. But even if morality and ethics were etymologically
synonymous, this would not prevent them, since they are now different
words, from being used for different concepts.

(PR §33)

Hegel’s criticism of Kant’s lack of distinction between morality and ethics is often
taken to mean that Kant concentrates only on inner-directed feelings of morality

N A T U R A L L A W A N D T H E S C I E N C E O F R I G H T

at the expense of any orientation toward the social and political institutions
of the community, while Hegel reorients philosophy to the importance of the
political order in conditioning and setting the bounds of moral choices and
judgements. This is true as far as it goes, but when Hegel identiﬁes the family, civil
society and the state as spheres of ethical life, this does not in and of itself distinguish
him from Kant who considers these spheres under the heading of public law. The
difference cannot lie only in the claim that Kant stresses private morality whereas
Hegel also stresses political engagement, for Kant too is committed to an active
public life. The difference lies rather in how the institutions of ethical life (family,
civil society and state) are understood: whether as deductions of practical reason
or, as Hegel puts it, as ‘an objective sphere which . . . posits distinctions within
itself which are . . . determined by the concept’ (PR §144). Hegel writes:

These distinctions give the ethical a ﬁxed content which is necessary for
itself and whose existence is exalted above subjective opinions and
preferences; they are law and institutions which have being in and for
themselves.

(PR §144)

In other words, Hegel is saying here that if we view these institutions from the
point of view of morality rather than that of ethics and treat them as actual or
potential emanations of our will, we will fail to recognise their ‘objective existence’
as ethical powers. Ethical life is a system of determinations which govern the lives
of individuals and in relation to which ‘the vain pursuits of individuals are merely
a play of the waves’ (PR §145

In relation to the subject, the ethical substance and its laws and powers
are . . . an object, inasmuch as they are, in the supreme sense of self-
sufﬁciency. They are thus an absolute authority and power, inﬁnitely more
firmly based than the being of nature . . . All these substantial deter-
minations are duties which are binding on the will of an individual . . .

(PR §§146 and 148)

The illusion of Morality is that the social and political institutions of Sittlichkeit
are, actually or potentially, the products of the will and it is this point of view that
Kant professes. Hegel responds that ‘moral subjectivity in fact determines nothing’
for ethical relations are necessary relations and impose on subjects binding duties
that can never be understood as emanations of their will – even in their most
rational manifestation (PR §148

). Hegel afﬁrms the existence of subjectivity in

modern ethical life, but he argues that subjectivity is a ‘mere moment’ within it.
Individuals may bear ‘spiritual witness’ to ethical powers as to their own essence
and may ﬁnd their ‘liberation in duty’, not least their liberation from natural drives
and inclinations. In an ethical community duty does not appear as a limitation on
freedom but only as a limitation on ‘freedom in the abstract’ or on the ‘arbitrary

N A T U R A L L A W A N D T H E S C I E N C E O F R I G H T

will of subjectivity’. In ethical life the individual must do what is prescribed and
it is this which is given the name of virtue: ‘the habit of the ethical appears as
a second nature . . .’ (PR §§149–50).

For Hegel the paradigmatic case of ethical life was that of ancient Greece where

the relation of the individual to the polis really was more like one of identity than
faith and trust, both of which presuppose some degree of self-reflection. To its
citizens the ethical life of the polis was always already present as the presupposition
of their activity. Modern ethical life, in contrast to the ancient, grants ‘the right
of individuals to their subjective determination to freedom, in so far as they belong
to ethical actuality’ (PR §153) and this subjectivity becomes in turn the ‘outward
appearance in which the ethical exists’; but subjectivity is always already contained
within the ethical as one of its subordinate moments. Hegel writes that there are
only two possible viewpoints on the ethical realm: ‘one proceeds atomistically and
moves upward from the basis of individuality’ (the viewpoint of Morality); the
other starts from ‘substantiality’, the unity of the individual and society. This is
the perspective of Sittlichkeit and it is the ‘road of science’ of which Kant had no
understanding.

Hegel criticised the lack of distinction between ‘morality’ and ‘ethical life’

not only in Kant himself, who drew rather cautious liberal conclusions, but also
in those who reproduced the viewpoint of Morality for more radical ends. Since
the institutions of ethical life (family, civil society, the state) are supposed to be
emanations of our will but in fact have an independent existence apart from our
will, it would be natural to conclude that they ought to be destroyed and replaced
with institutions which are in fact emanations of our will. Hegel argued that this
perspective, which is elaborated within the modern revolutionary tradition,
replaces illusion with illusion. It holds that the moral point of view is right in
theory but not yet realised in practice. In a passive mode it lives unhappily with
this knowledge; in an active mode it seeks to destroy those institutions which
now appear as obstacles to the realisation of our freedom and replace them with
institutions which accord precisely with the idea of right. In both its conventional
Kantian form and in its more radical expression, the inability to distinguish
morality from ethical life dresses the latter in the cloth of the former. It gives
ethical life the ‘outward appearance’ of being the self-determination of the will
and thereby conceals the ‘self-sufficiency’ of its authority and power. It is the
source, as we might say, of many democratic illusions.

The beginning of ethical life, for Hegel, is marked by the emergence of

the family and its most distinctive innovation, love. Love introduces a level
of recognition between individuals that goes far beyond mere respect for one
another’s rights. It cannot be reduced to any form of contract. It renounces a purely
independent existence; it seeks unity with another; and it looks for self-fulﬁlment
in this unity. But love also contains the contradictions of abstract right.

Hegel describes love as ‘the consciousness of my unity with another, so that

I am not isolated on my own but gain my self consciousness only through the
renunciation of my independent existence and through knowing myself as the unity

N A T U R A L L A W A N D T H E S C I E N C E O F R I G H T

of myself with another and of the other with me’ (PR §158). It contains an ‘immense
contradiction’. Its first moment is the feeling that ‘I do not wish to be an
independent person in my own right, and that, if I were, I would feel deﬁcient and
incomplete’. Its second moment is that ‘I ﬁnd myself in another person’ and that
‘I gain recognition in this person who in turn gains recognition in me’. My willing
renunciation of an independent life in favour of unity with another presupposes
my independence in the first place but also the possibility of regaining it in
a relation to another. Love is thus predicated on the ‘simultaneous renunciation
and afﬁrmation of individual personality’ (PR §§158 and 158

). It both negates

and afﬁrms self-consciousness and it is the capacity of the modern subject to sustain
this contradiction that Hegel calls our ‘genius’.

The love of which Hegel speaks is not an abstract ideal; it is love as it is shaped

in our own world within the setting of the family. Its ‘ﬁrst moment’ is marriage.
Hegel argues that in seeking to understand marriage we face an array of erroneous
interpretations: that it is a purely sexual relationship conceived only in its physical
aspect; that it is a civil contract based on arbitrary relations between individuals
which can be taken up and dismissed at will (a notion Hegel sees in Kant); that
it is simply based on the feeling of love and open to all its contingencies. Hegel calls
marriage ‘rightfully ethical love’ to capture the fact that the transient, capricious
and purely subjective aspects of love are excluded, for marriage externalises the
contradiction present within love. Hegel argues that the origin of marriage is
subjective in that it depends on the particular inclinations of the two persons who
enter this relationship (or in a ‘traditional marriage’ on the initiative of the parents
who arrange it); but he also points out that the ‘free consent’ of the individuals
concerned, to give up their individual personalities and to constitute between
themselves a single person, is itself an ‘objective determination’. It even becomes
the duty of the individuals concerned not to focus on the ‘self-limitation’ which
marriage brings, but on the feeling of ‘liberation’ they derive from it (PR §§162
and 162

Hegel observes that in modern times the subjective factor, that of being in love,

is increasingly regarded as the only important factor in the origin of marriage: ‘it
is imagined that each must wait until his hour has struck, and that one can give
one’s love only to a speciﬁc individual’ (PR §162

). The sharing of love becomes

the most vital end of our personal lives. But what starts off as an effect of feeling
soon asserts itself as a substantial factor. Marriage becomes an institution ‘exalted
above the contingency of passions’. If it begins life in the form of a feeling, this
aspect is soon superseded as the family becomes a person and its members its mere
accidents. Marriage is exalted so that everything else appears powerless against it
and subject to its authority (PR §§163 and 163

). In some circumstances it even

becomes an object of religious worship, as it did in ancient Rome in the shape
of the Penates, and in modern times it still appears as the exemplary institution in
which ‘piety ﬁnds its place’. The marriage ceremony conﬁrms a bond that is set
above all contingency of feeling. At the same time it sets the genders apart.
The man is supposedly endowed with qualities of personal self-sufficiency; he

N A T U R A L L A W A N D T H E S C I E N C E O F R I G H T

is powerful and active; he ﬁnds his ‘actual substantial life in the state, in learning,
etc.’ (PR §166). The woman occupies the role of ‘concrete individuality and
feeling’, she is passive and subjective, she ﬁnds her vocation in the family itself,
her ethical disposition is to piety and she relates more to the ‘law of the emotive’
rather than to the higher sciences or philosophy or artistic productions, all of
which require a ‘universal element’. In this ‘pure type’ of marriage, Hegel writes,

The difference between man and woman is the difference between animal
and plant; the animal is closer in character to man, the plant to woman,
for the latter is a more peaceful process of unfolding whose principle is
the more indeterminate unity of feeling. When women are in charge
of government, the state is in danger, for their actions are based not on
the demands of universality but on contingent inclination and opinion.
The education of women takes place imperceptibly . . . more through
living than through the acquisition of knowledge, whereas man attains
his position only through the attainment of thought and numerous
technical exertions.

(PR §166

)

These passages engender outrage in every thinking being committed to equality.
They are not an expression of Hegel’s view of what love should be but his account
of what love all too often is. As he points out, when the family is treated as a single
person in terms of property, this ‘difference’ between men and women is further
consolidated through the representation of the family by the ‘husband as its head’
(PR §171). This pure type of family life may thankfully be ‘disﬁgured’ in all manner
of ways (and today the institution of marriage is meant to accommodate an
equality between husband and wife that denies such gender differences), but
the movement which Hegel explores – from the idea of love as the ‘consciousness
of my unity with another’ to the actuality of family life – remains no less troubling.
In the face of such contradictions Hegel argues we may be tempted by a romanti-
cism which declares that the marriage ceremony is superﬂuous, that it is a formality
that can be dispensed with, and that love alone is the essential element. Hegel
cites the case of Friedrich von Schlegel’s Lucinde where Schlegel represents
‘physical surrender’ as the sign that is necessary to prove the freedom and intensity
of one’s love. A beautiful idea, Hegel comments, but also ‘an argument with which
seducers are not unfamiliar’. Do not forget, he says, that under existing conditions
‘a girl loses her honour in the act of physical surrender, which is not so much the
case with a man who has another ﬁeld of ethical activity apart from the family’
(PR §164

). For Hegel, ‘Lucinde’s shame’ reveals that the ‘immense contradiction’

present within love is not so easily resolved.

Kant’s inability to distinguish between morality and ethical life is replicated in

a parallel inability to distinguish between civil society and the state. Kant wrote
interchangeably of civil society (status civilis) and the state (civitas) and referred
indifferently to a civil state or a state of civil society. The difference between them

N A T U R A L L A W A N D T H E S C I E N C E O F R I G H T

appeared to him only as one of viewpoint. In a seminal chapter on Hegel’s use of
the concepts ‘state’ and ‘civil society’, Manfred Riedel has shown that Kant’s
identiﬁcation of civil society and the state inherited an old European tradition
whose origins go back to the concept of

κοινωνι´α πολιτικη´

(political community)

in Aristotle’s Politics (Riedel 1984). The fusion of state and civil society was
the classical formula of European political philosophy before the modern era,
and as long as Kant remained conﬁned within this framework, he could ﬁnd no
way of understanding civil society in its modern form: as a de-politicised and
de-traditionalised society, forming a system of complete interdependence among
otherwise isolated, self-interested and private individuals, separated on one side
from the state and on the other from the family. As Riedel notes, Hegel was the
ﬁrst political philosopher to conceptualise civil society in its modern sense as ‘the
stage of difference which intervenes between the family and the state’ (PR §182

Hegel’s philosophy of right is punctuated by criticisms of the propensity of the
natural law tradition, up to and including Kant, to equate the state simply with
the protection of civil society and treat the private interests of the members
of civil society as the ‘ultimate end’ for which they are politically united.

Hegel wrote that the development of civil society was the achievement of the

modern age which provided institutional support for the liberation of the subject,
but that it also provides the ground on which subjectivism thrives. Members of civil
society are private persons who ‘have their own interest as their end’, regard the
universal ‘as a hostile element prejudicial to their own ends’, try to ‘keep it
at a distance’ and imagine that they can ‘do without it’ (PR §184

). But in fact

civil society is a ‘system of all-round interdependence’ in which the needs and
rights of individuals are interwoven with the needs and rights of everyone else.
Civil society is a system of social interdependence since, as Hegel put it, individuals
cannot satisfy any of their particular needs except through the ‘exclusive media-
tion of the form of universality’ (PR §182). It is a sphere of ethical life inasmuch
as its members recognise one another as ‘rightful individuals’ who satisfy their
needs through the free exchange of the products of their labour with other free
individuals, as ‘human beings’ who educate themselves through their work, and
as members of social groups who develop a sense of collective responsibility
and solidarity with fellow-members. It is also, however, a system of ethical life that
is ‘lost in extremes’. It consists not only in the multiplication of needs and the
means of their satisfaction, but also in an ‘equally inﬁnite increase in dependence
and want’ (PR §195).

Civil society affords a spectacle of extravagance and misery as well as
of the physical and ethical corruption common to both . . . Particularity
in itself is boundless extravagance and the forms of this extravagance are
themselves boundless . . . But on the other hand, deprivation and want
are likewise boundless, and this confused situation can be restored to
harmony only through the forcible intervention of the state.

(PR §§185 and 185

)

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Hegel speaks of the deprivation and poverty which mar civil society and the sense
of injustice felt by the poor when the feelings of right which normally come from
supporting ourselves by our own activity are contradicted by their social existence.
Hegel writes that it is not enough to speak of right and freedom in the abstract
when these ideas appear as a mere sham to those who are deprived of all the
advantages of civil society, or when they are used to justify the indifference of
those who say that support for the poor is contrary to the principles of civil society.
Despite an excess of wealth, Hegel writes, civil society is ‘not wealthy enough
. . . to prevent an excess of poverty’, and the principal means it has of dealing with
poverty is merely to ‘leave the poor to their fate and direct them to beg from
the public’ (PR §245). If civil society can ﬁnd no better answer to the question of
poverty, then Hegel adds, ‘the boundlessness of deprivation and want can only be
restored to harmony through the forcible intervention of the state’ (PR §185

In this sense, we would have to say that, as Hegel put it, a well functioning ‘civil
society . . . pre-supposes the state . . . as something self-subsistent’ (PR §256).
We have come a long way from Kant’s idealised account of civil society as the
‘law-governed decisions of a united will’. We have come to Hegel’s theory of the
modern state, the character of which I shall now address through a re-examination
of the young Marx’s rightly renowned, spirited, but ultimately misjudged critique.

Notes

1 In terms of Hegel’s own intellectual biography, Habermas goes along with mainstream

of critical theory when he contrasts the radical and intersubjective character of
Hegel’s early writings to what he calls the ‘emphatic institutionalism’ of his later
Philosophy of Right (Habermas 1990: 23–43). Thus in The Philosophical Discourse
of Modernity (ﬁrst published in 1985) he presents the younger Hegel as committed
to a community based on second-order, constitutional norms which recognise the
heterogeneity and plurality of modern society and which regulate social differences
without imposing any absolute conception of social morality. By contrast, he presents
the older Hegel as having moved towards a position in which ‘the individual will
is totally bound to the institutional order and only justiﬁed to the extent that the
institutions are one with it’. Habermas applauds the younger Hegel for recognising
the importance of intersubjectivity in a heterogeneous and pluralistic society,
but admonishes the older Hegel as repeating the inability of liberalism to face up
to the demands of democratic self-determination which it could only hear as a ‘note
of discord offending against reason’. What ensued, according to Habermas, was the
‘blunting of critique’ (Habermas 1990: 43). Not only does this account repeat
the conventional view of a movement from the radicalism of youth to the conser-
vatism of old age (which is not true of Habermas either) but more importantly to my
mind, it calls a ‘blunting of critique’ what was in fact an extension of critique to critique
itself.

2 Compare with Hobbes who writes: the law of the sovereign can ‘never be against

reason’ and every member of society ‘must acknowledge himself to be the author . . .
of whatever he that is already their sovereign shall do and judge ﬁt to be done’
(Hobbes, Leviathan, quoted in Fine 1985: 25).

3 There is a certain irony in how closely the young Marx’s later critique of Hegel

followed the more original lines of Hegel’s own critique of Kant. To Marx it seemed

N A T U R A L L A W A N D T H E S C I E N C E O F R I G H T

that Hegel was merely a more realistic, hard-headed apologist for the modern state
than Kant, and that his special offence was to see through the conceptual illusions
of this system of rule and still give it a philosophical certiﬁcate of health. What Marx
did not see is that Hegel’s philosophy of right was a critique of Kant’s inversion of
subject and predicate and of the spurious ‘deductions’ he made from the postulates
of practical reason.

4 Chris Arthur comments that ‘instead of making the historical judgement that in

this society freedom means freedom of property, he [Hegel] makes the philosophical
judgement that the concept of freedom actualises itself in the private property system’
(Arthur 1986: 96). Jeremy Waldron reads Philosophy of Right more favourably as a
sophisticated natural law theory, criticising Hegel for his failure to see that private
property can be justiﬁed only if it can be made available in signiﬁcant quantities to
every person (Waldron 1988). Laurence Dickey writes that Hegel was acutely aware
of the close ties that many eighteenth-century natural law theorists had been drawing
between economic and civil developments in history, and of how they had moved
beyond a ‘ﬁxation’ on property toward the more ‘ethical’ dimensions of civil society.
He argues that Hegel continued in this tradition when he sought to reactivate the
virtues of ‘magnanimity, courage and the love of mankind’ without trying to reverse
the development of commercial society (Dickey 1989: 192–220). These otherwise
diverse readings have in common the fact that they all situate Hegel’s analysis of
property ﬁrmly within the natural law paradigm.

5 The concept of personality also marks the distinction between human beings and

animals: the former appear as thinking beings who translate their thoughts into action
and thereby determine themselves as free beings; the latter appear as instinctual
beings impelled by nature to certain behaviours but without will because they do not
represent to themselves what they desire. The person in this sense is the nucleus of
a system of rights in a way that the animal cannot be. The system of right distinguishes
between personality and subjectivity in general. Any living thing whatever may be a
subject, but as a person I am a subject who is aware of my subjectivity. This distinction
between persons and animals, like that between persons and things, is a social distinc-
tion established within the system of right; it is not an ‘ontology’ nor does it determine
how the distinction between persons and animals is applied.

N A T U R A L L A W A N D T H E S C I E N C E O F R I G H T

S TAT E A N D R E VO L U T I O N

Hegel, Rousseau, Marx

The young Marx’s critique of Hegel’s Philosophy of Right

The young Marx’s guilty verdict on Hegel’s so-called ‘doctrine of the state’ in
the Philosophy of Right is well known and within Marxist social and political
thought it has long overshadowed access to the text. Marx maintained that Hegel
concealed the forms of domination and violence characteristic of the modern state
beneath a ‘speculative’ veneer of freedom and reason. The root of the problem,
according to Marx, lay in Hegel’s method: he reiﬁed the predicate of the modern
state, the idea of universality, before deducing from this ‘idea’ the state’s mundane
institutional forms – the constitution, monarchy, legislature and executive (MEW
80). Once Hegel converted universality into the subject and the state into a mere
moment of this ‘mystical substance’, the dogmatic character of the Philosophy
of Right was set: Hegel’s concern was ‘simply to rediscover “the idea” in every
sphere of the state that he depicted . . . to fasten on what lies nearest at hand
and prove that it is an actual moment of the idea’ (MEW 98). He acknowledged
that Hegel gave a roughly accurate empirical account of power as it is exercised
in a rather conservative form of constitutional monarchy, but he argued that his
only philosophical contribution was to convert these empirical facts into the
actualisation of freedom. The resemblance Marx saw between Hegel’s ‘rational
state’ and the actual Prussian state led Marx to despair of ﬁnding any critical edge
in the substance of Hegel’s politics. ‘God help us all!’ was his ﬁnal, exasperated
comment after he cited a passage in which Hegel seemingly attempted to deduce
ministerial authority and the two houses of parliament, Commons and Lords, from
the ‘Idea’ (MEW 198).

For Marx, the value of reading Hegel’s Philosophy of Right lay in the mirror of

reality it offered. He saw Hegel’s idealist inversion of subject and predicate as the
philosophical expression of the real inversion of subject and predicate in bourgeois
society. He argued that it was not so much Hegel who inverted reality as reality
that was itself inverted and reﬂected in Hegel’s dialectic: ‘uncritical mysticism is
the key both to the riddle of modern constitutions . . . and also to the mystery of
Hegelian philosophy, above all the Philosophy of Right’ (MEW 149). In bourgeois
society real, subjective human beings are transformed into ‘unreal, objective
moments of the Idea’; private property becomes the subject of the will and the will

survives only as the predicate of private property (MEW 175); the state becomes
the divine idea on earth and individuals survive only as moments of this higher
reality (MEW 87). It is this upside-down reality which, according to Marx, Hegel’s
speculative philosophy mirrored and rationalised. Marx presented it as an idealised
expression of the abstract forms of domination characteristic of the modern world.
Its effect was to convert the everyday experience of alienation and domination
into a semblance of reason.

Marx maintained that the rationality Hegel attributed to the state was

contradicted at every point by its irrational reality. It is the illusion of the state that
‘the affairs of the people are matters of universal concern’; the truth of the state is
that ‘the real interest of the people . . . is present only formally’. The state allows
the people to appear only as ‘idea, fantasy, illusion, representation’, it offers no
more than a ‘ceremony’ or ‘spice’ of popular existence; it expresses ‘the lie that
the state is in the interest of the people’ (MEW 125). Both Hegel and the political
world he represented must be ‘turned on their head’ if the people are to enter the
political stage in person rather than through representation, in body rather than in
name alone, in actuality rather than in mere form. This logic of inversion ran right
through Marx’s text. Its literary trope is that of chiasma. Thus Marx writes that
Hegel’s true interest was ‘not to understand how thought can be embodied in
political determinations, but to dissolve the existing political determinations into
abstract ideas’; his true concern was ‘not the logic of the subject matter but the
subject matter of logic’ (MEW 73); the task he set political philosophy was
‘not to discover the truth of empirical existence but to discover the empirical
existence of truth’ (MEW 98); in his philosophy of right ‘thought is not guided by
the nature of the state, the state is guided by a pre-existing system of thought’
(MEW 75); he ‘does not provide us with the logic of the body politics . . . he
provides his logic with a political body’ (MEW 109). Marx presents himself, by
contrast, as the one who put philosophy and the world back on their feet. Whereas
in Hegel ‘the condition is posited as the conditioned, the determinator as the
determined, the producer as the product’ (MEW 62), Marx according to his own
account recognised that it is not the Idea that determines actuality but actuality
that determines ideas; it is not the constitution that creates the people but people
that create constitutions; it not the state that determines civil society but civil
society that determines the state; or, as Marx and Engels put it most famously in
The German Ideology, ‘it is not consciousness that determines life; it is life that
determines consciousness’.

This logic of inversion enters into almost every nook and cranny of Marx’s

critique of Hegel’s theory of the state. According to Marx, Hegel ‘does not say that
the will of the monarch is the ﬁnal decision, but that the ﬁnal decision is the will
of the monarch’ (MEW 82). Hegel idealises the bureaucracy as the ultimate purpose
of the state and the state as the ultimate purpose of the universal will, at the same
time as he empiricises the ‘real empirical state-mind, public consciousness’ as if it were
a ‘mere hotchpotch made up of the thoughts and opinions of the Many’ (MEW
124). Marx presents himself as the advocate of ‘true democracy’ in which ‘matters

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of universal concern are really matters of universal public concern’ and not the
preserve of the class of officials; representatives of the people are delegates of
the people and no longer a power over the people; the legislature is no longer
subsumed to the bureaucracy (the power that makes all the ‘petty . . . retrograde
revolutions’), but the bureaucracy is subsumed to the legislature (the power
that makes ‘great, organic, universal revolutions’). While Hegel appears as the
philosopher who ‘proceeds from the state and conceives of man as the subjectivised
state’, Marx presents himself as the democrat who ‘proceeds from man and
conceives the state as objectiﬁed man’ (MEW 87). In a democracy, he writes, ‘man
does not exist for the sake of the law, but the law exists for the sake of man’ (MEW
88). Hegel merely interprets the world; Marx presents himself as changing it.

There is power and beauty in these inversions and reversals, but was Hegel in

fact the ‘Hegel’ whom Marx imagined him to be: the alchemist who turned the
grubby empirical existence of the modern state into the actualisation of the Idea?
and was Marx in fact the ‘Marx’ whom he imagined himself to be: the relentless
critic of all existing conditions who puts the world back on its feet? My contention
is that Marx not only misconstrued what Hegel was doing in the Philosophy of Right,
but in getting Hegel wrong he also misrepresented himself. In any event, too often
we are left in contemporary Marxism with an essentially dogmatic acceptance of
the truth and validity of the young Marx’s critique. Let us, as it were, turn the
tables and reconstruct Hegel’s response.

Hegel’s critique of representation

While the young Marx accused the older Hegel of being an uncritical apologist
for modern representative government, even in its more backward and author-
itarian forms, Hegel depicted his own work as an attempt to dispel the illusions
of representation. In his Lectures on the Philosophy of World History (1975b) he
summed up his own ‘position’ thus:

it was a great advance when political life became the property of every-
one through the advent of representative government . . . [but] to
associate the so-called representative constitution with the idea of a free
constitution is the hardened prejudice of our age.

(LPWH 121)

The ‘hardened prejudice of our age’ – this is hardly the language of uncritical apolo-
getics. Behind the illusions of a ‘free constitution’, Hegel writes, ‘we encounter
a deﬁnite constitution which is not a matter of free choice but invariably accords
with the national spirit at a given stage of its development’ (LPWH 123). If
universal assent were the true basis of the state, then no law could be upheld unless
everyone agreed to it; but people are forced to obey laws whether or not they agree.
If the minority must submit to the majority, then this can ‘no longer be described
as freedom, for the will of the minority is no longer respected’ (LPWH 122).

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When we read the sections on representation in the Philosophy of Right, what

we ﬁnd is not an apology but rather an attempt to dispel the aura of representative
government. This is why his analysis of the illusions of representation appeared
so threatening to liberal commentators accustomed to associating representative
government with the idea of a free constitution. Marx, however, had little aware-
ness of his own affinity with Hegel when he too sought to dispel the mystique
of liberal forms and question the ‘hardened prejudice’ of our age which associates
modern representative government with the idea of a free constitution.

It was Hegel who first pointed to the manifold guarantees that restrict the

principle of representation both as it is envisaged in republican thought and as it
is practised in so-called ‘representative government’. It is restricted to one part of
the state, the legislature, or even to one House of the legislature, the Commons
and not the Lords. Representatives are endowed with a privileged standing in
relation to those they represent: they are not ‘agents with a commission or speciﬁc
instructions’ but enjoy a relation of ‘trust’ with their electors which allows them
to reach decisions on the basis of their own ‘greater knowledge of public affairs’
and ‘the conﬁdence felt in them’. The representatives are in any case answerable
to the executive and it is one of the principal duties of the executive to curb what
it sees as the ‘excesses’ of the popular assembly (PR §301

). The authority of

representatives is restricted in relation to that of the constitutional monarch, who
is endowed not only with formal powers of ultimate decision but also with certain
substantial powers over the survival of the state. It is as if there were an unwritten
rule that ‘public freedom in general and a hereditary succession guarantee each
other reciprocally’ (PR §286

). The constitution allows representatives to make

legislative changes, but only insofar as they are ‘imperceptible’ and ‘tranquil in
appearance’; and it demands that the constitution itself must not be regarded as
something ‘made even if it does have an origin in time’, but rather as something
‘divine and enduring . . . exalted above the sphere of all manufactured things’ (PR
§273

). The organisation of social and political interests in civil society is arranged

in such a way as to ‘prevent individuals from crystallising into a powerful bloc in
opposition to the organised state’ (PR §302) and to keep them under the ‘higher
supervision of the state’ (PR §255

). Indeed, the key to modern representative

government, in Hegel’s account, is that everything is done to ensure that the
people at no point become a ‘formless mass’ uncontrolled by the state. As Hegel
puts it, the ‘democratic element’ is refused admission to the state unless it is ﬁrst
mediated by the representative system. Unmediated, the voice of the masses is
treated as ‘always for violence’. Hegel highlights the many exclusions from political
participation practised by the state and justiﬁed by natural law theory. Kant, who
was no democrat, had put forward a long list of exclusions: the labouring class,
women, servants, criminals, children and foreigners. But, as Hegel observed, even
what we call ‘universal suffrage’ means in effect the participation of the Many,
never of All.

It was not Hegel’s opinion that women ought to be excluded, nor that the

democratic element ought to be supervised by state ofﬁcials, nor that individuals

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ought to be prevented from forming an opposition to the state, nor that the
monarch ought to have the power of ultimate decision, nor that the constitution
ought be exalted above the sphere of social life, nor that the legislature ought to
be policed by the executive, nor that representatives ought to be unaccountable
to their electors, etc. This is just the way things are in certain forms of repre-
sentative government once we view it stripped of its mystique. This is the reality
of representation in the modern state. The real function of political representation,
as Hegel presents it, is to admit the private interests of civil society into the
organism of the state as one of its several elements – alongside the constitution, the
monarchy, and the executive – and to serve as a middle term between civil society
and the state. The role of representation is to embody the ‘subjective moment in
universal freedom’ in order to prevent the isolation of the government which
otherwise might become an arbitrary tyranny, and to prevent the isolation of civil
society which might otherwise crystallise into a bloc in opposition to the state (PR
§302). Hegel’s account of the functions of representation in the modern state
contrasts sharply with the homage paid to representative government by liberal
philosophers like Kant, who identiﬁed it with ‘the united will of all’ and on this
basis declared that ‘every true republic is and can be nothing else than a
representative system of the people’. And there is little that Marx said in his
critique of representation that he did not draw from Hegel. He simply articulated
in a more explicit way its critical content.

Although Marx misconstrued the nature of his difference form Hegel, he did

not invent the fact of difference itself. The actual difference between them
does not lie in the fact that one was a critic of representation and the other was
an apologist, for they were both critics, but rather in the speciﬁc character of their
respective critiques. This difference emerges most sharply in how they handled
the critique of representation, first articulated by Rousseau, that has been coeval
with the modern form of representation itself. Hegel combined his critique of
representation with what we might call a critique of the critique of representation –
and especially of the abstract ideal of ‘true democracy’ which Rousseau initiated
and Marx later reconstructed. It was Hegel’s critique of this ‘abstract ideal’ which
Marx misread as conservative and doctrinal.

Hegel’s critique of the critique of representation

Rousseau’s critique of representation was expressed in two closely related propo-
sitions: one was the demand to abolish representation as such on the ground that
I have a right to speak for myself and no one else has a right to speak on my behalf;
the other was the demand to abolish the guarantees which restrict representation
in the modern state and to make representation ‘fully active and unrestricted’.
When we read the Philosophy of Right we ﬁnd both propositions analysed in detail.

Hegel observes that ‘subjective opinion naturally enough finds superfluous

and even perhaps offensive the demand for such guarantees, if the demand is
made with reference to what is called the “people” ’ (PR §310

). In the name of

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the people, revolutionary thought puts forward the demand, ‘all power to the
assembly’, and declares ‘an essential opposition between the assembly and the state
executive, as if the assembly were all good and the executive all bad’. To this
opposition Hegel comments that it could equally be said that ‘the representative
assembly starts from private interests and is therefore inclined to devote itself to
these at the expense of the general interest, and that the executive starts from the
standpoint of the state and therefore devotes itself to the public interest’. Neither
standpoint is more justified than the other. If representation is a middle term
between civil society and the state and its role is to embody the ‘subjective moment
in universal freedom’ as one of several elements of the state, then the appropriation
of the whole state by the principle of representation cannot overcome the private
point of view, it can only generalise it. Hegel argues that the legislature and
executive should be seen for what they are, elements within the organism of the
state as a whole, and that if an essential opposition is established between them (as
there was in the aftermath of the French Revolution), this would be a sign only
that the state was in the ‘throes of destruction’ (PR §300

). Hegel’s discussion

of Montesquieu’s doctrine of the ‘separation of powers’ may serve to illustrate his
criticism of the view that the legislature and executive are independent of one
other. He writes:

While the powers of the state must certainly be distinguished, each
must form a whole in itself and contain the other moments within it.
When we speak of the distinct activities of these powers, we must not
fall into the monumental error of taking this to mean that each power
should exist independently and in abstraction; on the contrary, the
powers should be distinguished only as moments of the concept. On the
other hand, if these differences do exist independently and in abstraction,
it is plain to see that two self-sufﬁcient entities cannot constitute a unity,
but must certainly give rise to a conflict whereby either the whole is
destroyed or unity is restored by force. Thus during the French
Revolution, the legislative power at times engulfed the so-called
executive and at other times the executive engulfed the legislature, so
that it remains an absurdity in this context to raise . . . the moral demand
for harmony.

(PR §272

)

What Hegel is saying here is that we cannot take one element of the state, in this
case the representative assembly, abstract it from its place within the whole, turn
it into the totality and think that we have solved the problem of democracy. This
would be equally true of any other element of the state – let us say, ‘deliberation’
– which contemporary theories of deliberative democracy also abstract from its
place within the whole, idealise and extend into the totality.

An equally ‘dangerous prejudice’ Hegel identiﬁes is one which sets the ‘general

will’ of the people in opposition to the associations of civil society, either on the

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grounds that the factions and parties of civil society are self-interested, corrupted
by money and incapable of subsuming their private point of view to the good of
the whole, or on the opposite grounds that they are determined by the political
system and incapable of representing the particular interests of civil society. Either
way, the temptation arises to reject the alien institutions of representation in
order that the people might appear in the assembly in person. At its limit Hegel
argues that this attitude leads to the suppression of the associations of civil
society – either because they put the private point of view before the universal
or because they put the point of view of the state before the interests of civil
society. Hegel’s argument was that this particular type of radicalism threatens
to introduce a new barbarity and provides a new mask beneath which the rule
of the few and the indifference of the many remain firmly intact. Although
Hegel recognised that the demand that everyone should participate in the
business of the state arises naturally in opposition to the many formal and
substantial exclusions established by representative government, he dismissed
it as a ‘ridiculous notion’ – partly because it is based on the assumption that
everyone is ‘at home in this business’ but more especially because it issues the
instruction that everyone ‘must participate in this business’ (PR §§301 and 301

This ‘must’ was evidence of the obligation that lies behind this radical democratic
demand.

Hegel maintained that a ‘pure’ form of representation, one in which citizens

appear only as an atomised mass of individuals and the state is treated as the only
legitimate association, would turn the state into a slave to public opinion and
public opinion, as he put it, is by its nature not only a repository of ‘true needs’
and ‘substantial principles of justice’, but also suffers from ‘all the contingencies
of opinion, with its ignorance and perverseness, its false information and its errors
of judgement’ (PR §317). In public opinion ‘truth and endless error are so closely
united . . . that it cannot be genuinely serious about them both’ (PR §317

). Hegel

did not devalue the empirical consciousness of the people, as Marx thought
he did, and he reafﬁrmed that public opinion deserves to be ‘respected as well as
despised’ (PR §318). However, he also insisted that to be independent of public
opinion is ‘the ﬁrst formal condition of achieving anything great or rational either
in actuality or in science’ (PR §318), and that ‘no one can achieve anything
great unless he is able to despise public opinion as he here and there encounters
it’ (PR §318

). Hegel pointed out what is obscured by a certain type of democratic

radicalism: that if we are not to turn vox populi into vox dei, then we have to go
beyond ‘subjective opinion and its self-conﬁdence’ and not take it as given that
the people must always ‘know best what is in their own interest’ (PR §301

). In

other words, critical thought must be prepared to be critical and when necessary
to go against public opinion. In the end it all depends on substance – on what
the people will. To translate this argument, as Marx did, into a statement of
contempt for the people or reverence for the state is to miss the point of Hegel’s
determination to face up to the burden of judgement and not cloud it in
democratic illusions.

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Hegel’s critique of Rousseau

Hegel’s ‘critique of the critique of representation’ was based on a long engagement
with Rousseau and Rousseauian ways of thinking. In his Early Theological Writings
Hegel put himself on Rousseau’s side when he wrote that, by posing the ‘general
will’ as the principle of the modern state, Rousseau ushered in ‘the revolution
in the spirit of the age . . . the right to legislate for oneself, to be responsible to
oneself alone for administering one’s own law’ (ETW 145). Rousseau’s achieve-
ment was to rediscover the ancient political principle according to which citizens
‘obeyed laws laid down by themselves, obeyed men whom they themselves had
appointed to ofﬁce, waged wars on which they themselves had decided, gave their
property, exhausted their passions and sacriﬁced their lives by thousands for an
end which was their own’ (ETW 154). If Rousseau made the ancient polis (in the
shape of Sparta) into a ‘living example to mankind’, the young Hegel added
that the revival of this ideal (more in the shape of Athens) was ‘the central task
of the age’ (Hegel 1984: 171).

It was especially in the context of the French Revolution that Hegel began to

re-examine the foundations of this doctrine. In the Phenomenology of Spirit he
formulated the Rousseauian principle thus:

Neither by the mere idea of self-given laws . . . nor by its being repre-
sented in law-making . . . does self-consciousness let itself be cheated
out of reality, the reality of itself making the law and accomplishing . . .
the universal work . . . In the case where the self is merely represented
and ideally presented, there it is not actual; where it is by proxy, it is not.

(PS §588)

But the question Hegel addressed was this: why did this ideal culminate in the
unity of ‘absolute freedom and terror’. His answer was that ‘only abstractions
were used, the Idea was lacking’. The abstraction was the ‘general will’; the Idea
that was lacking was ‘concrete freedom’. Why is the general will an abstraction?
Hegel’s answer had three aspects. First, the general will expresses the relation of
the individual to society in a fantastical form. The illusion is that ‘every personality
. . . undivided from the whole, always does everything [that is done by the whole],
and what appears as done by the whole is the direct and conscious deed of each’.
Consequently, the real antagonisms which exist between individual consciousness
and the general will are given no recognition within the ‘universal work of absolute
freedom’ (PS §589). The general will permits no middle term between the
universal and the individual so that individuals are instructed to see their only
purpose as the general purpose and the signiﬁcance of individual personality is
thereby denied. It presents itself as the will of all individuals as such, but in reality
it is the will of some individuals only insofar as they will the general will.

Second, Hegel argued that the general will presents the relations of ‘man’

to ‘nature’ in an equally illusory way by ‘dissolving’ the external world and

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re-presenting it as ‘simply its own will’. It is as if the world is an empty vessel that
can offer no resistance to what is willed by the general will. Since the general
will recognises no natural limitations, it puts its faith in its own omnipotence.
It believes it can move seas, but it ends up only with parched salt ﬂats. Third, Hegel
argues that the general will cannot create the positive condition of universal equality
it espouses because its conception of freedom is essentially negative and it only
experiences itself through the annihilation of all particular and objective determinations.
Thus its relation to the individual becomes one of unmediated negation:

The sole work and deed of universal freedom is therefore death, a death
which has no inner significance . . . for what is negated is the empty
point of the absolutely free self. It is thus the coldest and meanest of all
deaths, with no more signiﬁcance than cutting off a head of cabbage or
swallowing a mouthful of water.

(PS §590)

The general will can achieve nothing constructive by way of ‘institutions
of conscious freedom’. Government, which is supposed to be ‘the individuality of
the universal will’, stands opposed to it as a speciﬁc will of its own and becomes
in the eyes of other parties merely the victorious faction and a target for rival claims
to power. All intermediate social groups and classes are abolished on the grounds
that they represent merely partial interests and therefore oppose the general
will. Suspicion and guilt rule supreme as the ‘mask of virtue’ is torn from the
face of those suspected of secret intentions and being suspected takes the place of
being guilty. In the end, Hegel argues, it is only through the fury and fanaticism
of destruction that this negative will feels its own existence and power. Hegel
did not blame Rousseau for what was done in his name, any more than Marx
or Nietzsche are to be blamed for what has been done in theirs, but the terror
marked for Hegel an event which, as it were, robbed Rousseau of his innocence.
Representation was not in fact overcome; it was reproduced in a less rational form.

There were no fundamental ‘breaks’ in Hegel’s critique of the revolutionary

tradition from the Phenomenology of Spirit to the Philosophy of Right. In the latter
Hegel again acknowledged the democratic aspect of the idea of the general will
which he reformulated thus:

all individuals ought to participate in deliberations and decisions on the
universal concerns of the state – on the grounds that they are all members
of the state and that the concerns of the state are the concerns of everyone,
so that everyone has a right to share in them with his own knowledge and
volition.

(PR §308

)

He acknowledged that this idea ‘afforded the tremendous spectacle, for the ﬁrst
time we know of in human history, of the overthrow of all existing and given

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conditions within an actual major state and the revision of its constitution from
ﬁrst principles and purely in terms of thought’ (PR §258

), and that Rousseau was

the ﬁrst to put forward ‘the will as the principle of the state, a principle which has
thought not only as its form . . . but also as its content’ (PR §258

). However,

Hegel also registered the shadow that fell between the intention behind the idea
and its unintended consequences:

the intention behind this was to give it what was supposed to be a purely
rational basis. On the other hand, since these were only abstractions
divorced from the Idea, they turned the attempt into the most terrible
and drastic event.

(PR §258

)

Why did the Revolution degenerate into a ‘most terrible and drastic event’? Hegel
argues it was because it endeavoured to ‘implant in the organism of the state
a democratic element devoid of rational form’. If this seemed to be a plausible idea,
it was only because it advanced an abstract determination of membership of the
state and ‘superﬁcial thinking sticks to abstractions’. Having no notion of the ‘will’s
rationality in and for itself’, whether or not it was ‘recognised by individuals’ (PR
§258

), it turned the union of individuals within the state into a contract based

on their ‘arbitrary will and opinions, and on their express consent given at their
own discretion’ (PR §258

). The general will demonstrated intolerance towards

everything particular:

Fanaticism wills only what is abstract, not what is articulated, so that
whenever differences emerge, it ﬁnds them incompatible with its own
indeterminacy and cancels them. This is why the people, during the
French Revolution, destroyed once more the institutions they had
themselves created, because all institutions are incompatible with the
abstract self-consciousness of equality.

(PR §5

)

The general will alone was ‘free, inﬁnite and absolute’. It alone was ‘supreme in
relation to things’ and ‘absolute in relation to everything else’ (PR §44

In the Philosophy of History Hegel again took up the same thematic – though

this time in a more historical mode. He celebrated the key idea which informed
the Revolution, that of the free will as the principle of the state, and in a famous
passage towards the end of the book commented:

The principle of the Freedom of the Will . . . asserted itself against
existing Right . . . The entire political system appeared as one mass of
injustice. The change was necessarily violent because the work of trans-
formation was not undertaken by the government . . . the idea of Right
asserted its authority all at once, and the old framework of injustice could

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offer no resistance to its onslaught. A constitution, therefore, was
established in harmony with the conception of Right, and on this
foundation all future legislation was to be based. Never since the sun had
stood in the ﬁrmament and the planets revolved around him had it been
perceived that man’s existence centres in his head, i.e. in thought, inspired
by which he builds up the world of reality . . . This was accordingly
a glorious mental dawn. All thinking beings shared in the jubilation
of this epoch . . . a spiritual enthusiasm . . . thrilled through the world,
as if the reconciliation between the Divine and the Secular was now ﬁrst
accomplished.

(PH 447)

It seems clear to me that Hegel had not lost his enthusiasm for the Revolution,
but neither did he become complacent over its results. In his analysis of the
aftermath of the Revolution, he wrote of how the first constitutional form of
government, based on a division between the monarch at the head of the executive
and the legislature representing the people, collapsed – not least because of
the absolute mistrust between them. There emerged in its place a government
which theoretically proceeded from the people but in reality from the National
Convention and its Committees. Now purely abstract philosophical principles
were set up: Virtue in opposition to corruption and Terror in opposition to licence.
Virtue distinguished the citizens into two classes – those who had it and those
who did not, and Terror attained a terrible power. Virtue, Suspicion and Terror
joined together to become the order of the day and exercised power without legal
formalities. The punishment they inﬂicted was simple – death. The requirement
that the general will had also to be empirically general, established the atomistic
principle which insists on the sway of individual wills and which maintains that
all government must emanate from them. The ruling party allowed no other
political organisation to be set up, but the government itself was branded by its
opponents as a particular will wielding arbitrary power in the name of the people.
When it was expelled from power and the opposition ﬁlled the vacant places, they
met with the same hostility and shared the same fate. Such tyranny could not last.
An organised government was introduced in the shape of the Directory of Five,
but under it suspicion was still in the ascendant and this constitution experienced
the same fate as that of its predecessor. Then came the rise of one who knew how
to rule by military means and who established himself as an individual will at the
head of state. Under Napoleon great victories were gained but the sway of mistrust
was exchanged for that of fear and ‘never was the powerlessness of victory
exhibited in a clearer light’. The religious and nationalistic dispositions of subject
peoples brought about his ruin and an unstable constitutional monarchy was
restored. This government was in turn overthrown and at length ‘after forty years
of war and confusion indescribable, a weary heart might fain congratulate itself
on seeing a termination and tranquillisation of all these disturbances’ (PH
449–51). Hegel died soon after writing these lines.

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Hegel and the French Revolution

Hegel’s understanding of politics was, as it should have been, shaped and reshaped
by the momentous political events of his day. Political philosophy cannot be
isolated from events and in Hegel’s writings we ﬁnd an evolving relation between
thought and actuality in which experience was the driving force. The conjunction
of absolute freedom and terror provoked a major rethinking of the ‘idea of freedom’
that was actualised in the revolution and of its mimetic relation to the forces it
overthrew. If Hegel’s thinking had solidiﬁed into a static ideal, then this would
have been indicative of a form of thought which had grown old and lost its life,
but this was not the case. However, from the Phenomenology of Spirit through to
the Philosophy of Right and thence to the Philosophy of History we also ﬁnd a deﬁnite
line of continuity in Hegel’s analysis of the French Revolution.

In his seminal discussion of Hegel and the French Revolution (1982), Karl Ritter

distinguished between three periods in Hegel’s understanding of this event.
The first, in the immediate aftermath, was characterised by positive support
for the Revolution and its secular aims against the injustice of the old order and
the dogmatics of positive Christianity (The positivity of Christianity 1795 and The
spirit of Christianity and its fate 1799). At this time Hegel’s attack was directed
against a political and religious order that required blind obedience and sacriﬁce
of intellect, and the experience of the Terror played only a minor role in this
emplotment. In the second ‘Jena period’, disillusionment set in and the Terror
became the nub of Hegel’s reassessment. Enlightenment was now read through
the lens of the Revolution, whereas before the Revolution was read through the
lens of Enlightenment, and what it revealed was a madness within the dream of
reason. In the third period, the violence of revolution was justiﬁed retrospectively
by the ‘cunning of reason’ which redeemed the revolutionary Terror through its
construction of the Napoleonic Code and its formation of a modern constitutional
state. From this drama of afﬁrmation, negation and ﬁnally reconciliation, Ritter
drew the somewhat surprising conclusion that ‘Hegel always afﬁrmatively accepted
the French revolution’. Ritter’s conclusion, however, does not easily ﬂow from
this argument, and perhaps Jürgen Habermas came closer to its spirit when he
concluded that the older Hegel accepted the Revolution’s substantive achieve-
ments but dreaded the revolutionary process itself. According to Habermas, it was
perhaps for this reason that Hegel was obliged to conceive the realisation of reason
as an objective and necessary process of world history (Habermas 1974).

Neither of these formulations does justice to Hegel’s texts. What I see in them

is a determination not to philosophise away terror under the sign of historical
progress, but rather the contrary: to look horror in the face. The darkness that
followed the ‘glorious mental dawn’ impelled him beyond any faith in historical
progress or in retrospective consolation. The idea of a final reconciliation
attributed to Hegel belongs more rightfully to Kant, whose ‘universal history’
offered consolation for the violence of human history in the prospect of a future
‘perpetual peace’, as if providence and the plan of nature were destined to work

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out for the best. Kant’s philosophy of history was no more designed to justify
terror than was Hegel’s, but he contemplated the modern exercise of violence
‘philosophically’ in a way that Hegel could not accept. The key to Hegel’s investi-
gation was the conviction that terror must not be left with the last word and
that philosophy could not rest content either with a revolutionary idealism that
rationalised violence or with a cynical realism that saw in history only a ‘slaughter-
bench on which all promises are broken and all ideals crushed’. The peace with
the world which Hegel sought had more warmth and passion in it than this.

Ritter was right that Hegel never abandoned his enthusiasm for the French

Revolution or for the idea of universal freedom which informed it. However, Hegel
challenged the self-understanding of the Revolution shared by the Jacobins and
Edmund Burke alike, namely that it represented a novum, the birth of something
radically new, something which broke with all tradition. His contention was that
the ‘idea’ of the Revolution reﬂected the power it opposed inasmuch as the idea
of the general will, indicating the absolute and indivisible sovereignty of the
people, was shaped and formed by the absolute and indivisible sovereignty of
the absolutist monarch it resisted. It was not the revolutionary idea of freedom
that Hegel turned against, but the fact that ‘only abstractions were used’. On this
basis there could be liberation from the old regime but no concrete freedom could
be established.

It is important to be precise about the relation between the Revolution and its

decline. If we follow Hegel’s account, it is not just the case that the practices
of the Revolution fell short of its concept, but rather that the concept itself was
‘one-sided’ and ‘untrue’. Hegel understood the fate of the Revolution in terms
neither of the corruption of an abstract ideal, nor in terms of the malpractice of
the revolutionaries themselves, nor in terms of the backwardness of the people,
nor because it was merely ‘political’ and not yet ‘social’. For Hegel, the Revolution
was not an abstract ideal impatient for its proper author, its proper context, its
proper addressee and its proper epithet. It was a creature of its times, as ‘bourgeois’
as any other of the forms and shapes of right, possessed of the aura which only the
system of right could generate. It replaced the indeterminate ‘I’ of the bourgeois
property owner with the equally indeterminate ‘we’ of the people as if the world
were a void waiting only to be ﬁlled with its soul, but when it discovered that the
world was not a void, it could express its frustrated sense that ‘everything was
possible’ only in a fury of destruction.

One final point concerns the way in which images of the past inform our

collective imagination of the future – in this case how images of the ancient world
informed the modern idea of revolution. Rousseau acknowledged the difﬁculty of
adapting ancient principles of democracy to modern conditions: especially in
relation to questions of quantity raised by the great size of modern nation-states
and equality raised by modern idea of right. Hegel followed in Rousseau’s footsteps
when he wrote that such democratic constitutions as the Greeks possessed ‘are
possible only in small states’ and that their necessary condition is that ‘what among
us is performed by free citizens – the work of daily life – should be done by slaves’

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(PH 254–5). In Rousseau we ﬁnd a melancholy note in the face of such difﬁculties:
‘does the freedom of some entail the unfreedom of others?’ he asks in The Social
Contract, ‘Perhaps. Extremes meet’. The older Hegel did not abandon his own
youthful admiration for ancient democracy. It was a world in which citizens lived
together in a common culture and on the basis of common interests and partici-
pated with their entire personality at critical stages of public business. He argued,
however, that the principles of ancient democracy have quite another meaning
when applied to modern times – now that the world of face-to-face, oral persuasion
has been supplemented, if not replaced, by the world of writing. In a sociological
mode he observed that in the Greek world

that unity of opinion to which the whole community must be brought
. . . must be produced in the individual members of the state by oratorical
suasion. If this were attempted by writing – in an abstract, lifeless way –
no general fervour would be excited among the social units; and the
greater the number, the less weight would each individual vote have . . .
A political existence of this kind is destitute of life, and the world is
ipso facto broken into fragments and dissipated into a mere Paper-world.
In the French revolution, therefore, the republican constitution never
actually became a democracy: Tyranny, despotism, raised its voice under
the mask of freedom and equality.

(PH 255–6)

Hegel concluded that the architectonic of the modern state cannot be conceived
in terms of the simplicity of the Greek temple and it is a mistake to look to the
ancients for models of how constitutions ought to be organised in modern times.
The modern system of right involves the complexity of a Gothic ediﬁce of which
‘the Ancients knew nothing, for it is an achievement of the Christian era’ (LPWH
121). Its differentiated structure, consisting in the ‘free development of its various
moments’, has principles distinct from those of the polis or its re-incarnations.

The limits of Marxist politics

Let us return to Marx. The young Marx’s critique of Hegel’s alleged ‘doctrine of
the state’ preﬁgured many key tenets of the modern revolutionary tradition. Most
contemporary Marxists have echoed Marx’s critical analysis of parliamentarism
and the modern representative principle; his conviction that sovereignty must no
longer be transferred to government by the people but be retained by the people
themselves; his appeal to a direct resumption on the part of society of the
sovereignty which was alienated to the separate sphere of politics.

For example, in a collection of essays aptly entitled From Rousseau to Lenin,

Lucio Colletti argued that Marx’s political philosophy can be traced back to
Rousseau’s propositions that ‘sovereignty does not admit of representation’ and
that ‘every law the people has not ratiﬁed in person is null and void’ (Rousseau

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1973: 240).

Marx himself certainly declared his debt to Rousseau when he

observed that ‘the French’ understood true democracy to mean that ‘the political
state disappears’ and the key question was how to adapt this Rousseauian principle
to modern conditions (MEW 188). He argued that when Rousseau prescribed that
‘all as individuals should wish to share in the legislature’, this prescription meant
in effect that ‘it is the will of all to be real active members of the state . . . to give
reality to their existence as something political’ (MEW 188). Marx accepted that
Rousseau’s treatment of the legislature as the ‘sole focus of universal participation’
makes no sense in the modern age, not least for reasons of size, but he added that
it is only because ‘this single activity of legislation is the only political activity of
civil society . . . that everyone both wishes and ought to share in it at once’ (MEW
189). The solution, as the young Marx saw it, was to go beyond this ‘abstract view
of the state’ and extend participation into all areas of the state and society until
the point is reached at which the very distinction between civil society and the
state is dissolved. In a shape of thought that goes back to the old European
tradition of natural law and eventually to Aristotle, Marx declared that the ‘true
state’ comprises both the political state and civil society in an undifferentiated
unity.

This image of ‘true democracy’ was drawn most sharply in the shape

of the Commune or Council: the ‘simple machine’ in which the ‘haughteous
masters’ of the people are ﬁnally replaced by their ‘removable servants’ and ‘mock
responsibility’ gives way to ‘real responsibility’; the space in which the people
take an independent part not merely in voting and elections but in the everyday
running of the state; the form of rule in which the distinction between the rulers
and the ruled is ﬁnally abolished and where instead ‘all will govern in turn and
will soon become accustomed to no one governing’ (Colletti 1972: 221, quoting
from Lenin’s State and Revolution who in turn quotes from Marx’s Civil War in
France).

The ‘reply’ to Marx which is implicit in Hegel’s Philosophy of Right contains

the proposition that the ‘true democracy’ which the young Marx contrasted to
democracy of the state, ends up mirroring the unrealism of the society it seeks
to overcome. The real difference between Marx and Hegel lies in the recognition
we ﬁnd in the latter that this form of opposition to power may not only mimic the
forms of domination, mystiﬁcation and abstraction which it most opposes, but may
do so in irrational and destructive ways.

It should be noted, as Richard Hyland has done, that Marx’s reading of the

Philosophy of Right was rather conventional as far as the Young Hegelians were
concerned (Hyland 1989). They generally understood Hegel’s Philosophy of Right
to be about the forms in which human freedom is exercised and agreed that the
modern state represents a key political form for collective reﬂection, discussion
and resolution of matters of universal concern. They disagreed, however, with
what they read as the confusion of logic and history in Hegel’s thought, the
formalism of his notion of ‘matters of universal concern’, and his political
conclusions. For example, Eduard Gans, who was a colleague of Hegel at the
University of Berlin and probably taught Marx legal philosophy, criticised Hegel’s

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‘justification’ of Prussian constitutional monarchy from a liberal republican
standpoint, and substituted for it the American Republic as a more appropriate
exemplar. Against Hegel’s doctrinalism, he afﬁrmed the necessity of subjecting all
forms of state to rational criticism. Arnold Ruge, who personiﬁed the revolutionary
spirit of the ‘Glorious Days’ of 1830 and subsequently edited a radical journal with
Marx, read the Philosophy of Right as a defence of the backward form of state
currently existing in Prussia and criticised Hegel for abandoning political action
in favour of a philosophy of eternal essences. The root of the problem for Ruge
was Hegel’s confusion of timeless logical categories with particular historical
institutions. Marx’s interpretation of Hegel was also close to that developed
from the conservative side of the political spectrum by F. J. Stahl, who protested
against what he saw as the inversion of subject and predicate in Hegel’s theory of
the state, the deduction of determinate institutions from abstract categories, and
the conversion of irrationality and compulsion into the semblance of reason and
freedom.

The young Marx pushed the Young Hegelian critique of the Philosophy

of Right to a radical democratic conclusion, but he did not fundamentally reassess
their reading of the text.

In any event, if Hegel were what the young Marx thought him to be, the idealist

who interpreted a version of Prussian constitutional monarchy as the incarnation
of the Idea, it is difﬁcult to imagine why the inversion of such dogmatism should
produce the rich pickings Marx ascribed to it. Marx himself never tired of
criticising the ‘Young Hegelians’, and especially Feuerbach, for merely inverting
Hegel and doing nothing to change either the terms inverted or the relation
between them. In the German Ideology he and Engels argued that a self-proclaimed
materialism that deﬁnes itself as the inversion of idealism, winds up determined
by that idealism as its own determinate negation. They held, for instance, that
Feuerbach’s abstract materialism (with its ahistorical conception of ‘man’ and
‘sensuous existence’) did not overcome the abstract idealism of the Hegelian
system but only offered a more naive, pre-critical idealism (Warminski 1998:
172 ff.). This is familiar ground among Marx-scholars, but can such criticism also
be levelled at the young Marx himself? Was his own language of ‘real life’, ‘sensuous
man’ and ‘true democracy’ merely an inversion of what he read as Hegel’s idealism
and no less abstract?

Below I shall pursue the suggestion put forward by Andrzej Warminski that

if Marx was to be ‘Marx’ and not just another young Hegelian, then he had
to move beyond this logic of inversion and the ‘pre-critical, naive idealism’ it
propagated. If Hegel was not the absolute idealist that Marx thought he was,
if there is another Hegel whose signature is legible in the text, then perhaps
we can find another Marx: not the Marx who purported to put Hegel back on
his feet and actually rekindled an older tradition of natural law, but a Marx
who had to surpass the standpoint of the young Hegelians to become ‘Marx’.

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Notes

1 The lectures which Gans turned into the text of Philosophy of History were ﬁrst

delivered in 1822–3 and last delivered in the winter of 1830–1, just before his death
and just after the three ‘Glorious Days’ of Parisian barricades which toppled the
Bourbon dynasty and replaced it with the constitutional monarchy of the ‘bourgeois
king’, Louis-Philippe. This was the ﬁrst major breach of the system of restoration
established by the Congress of Vienna and was described by Heinrich Heine as
‘sunshine wrapped in newspaper’. It led to revolts among the Flemish and Walloon
Catholics and among Polish nationalist troops, as well as exciting unrest in Italy,
Spain, Portugal, Switzerland, England and Germany.

2 It is often argued that Marx’s political thought should be understood as a synthesis

of French political philosophy, Scottish political economy and German idealism, and
that the Rousseauian thread is only part of a larger fabric. This is in part true. The
French informed Marx’s thinking about democracy; the Scottish informed Marx’s
thinking about the state as an instrument of bourgeois property; the Germans
informed Marx’s thinking about the formation of a rational state beyond the existing
bourgeois state. But we should not assume that Marx wove these threads together into
a unitary theory. What we ﬁnd rather is a movement in Marx’s texts from one source
to another without synthesis. These different sources have subsequently provided
the basis for conﬂicting varieties of Marxism: ‘left Marxists’ looking back to the anti-
representational tradition of Rousseau; revisionist Marxism looking back to the
constitutional theories of Smith and Kant; state socialism looking back to the idealism
of the state present in Fichte and imagined in Hegel.

3 Marx’s political thought was dominated by the thought of a new unity arising out

of old divisions, which was to be accomplished not only by a transfer of power from
one class to another, but by a transition from one form of power to another – from the
alien form of the state in which the people are only ideally present, to a power that is
directly into the hands of the people.

4 The spirit of Marx’s critique of representation may be illustrated by the image of the

Commune drawn by Guy Debord. Directing the critique of representation east and
west, at a Leninism where ‘the representation of the working class radically opposes
itself to the working class’, and at a parliamentarism where ‘the people in miniature’
opposes itself to the people themselves (Debord 1994: §§100–2), Debord depicted
the representative principle as ‘the quintessence of modern domination . . . the
concrete inversion of life . . . the autonomous movement of the non-living . . .
the heart of the unrealism of the real society’ (§§2–3). He construed the Commune
as the ‘supersession’ of the representative principle which puts democracy back on
its feet and inverts the inversion. The Commune is presented as the form in which
‘all prior divisions between rulers and ruled are ﬁnally reunited . . . the proletarian
movement is its own product and this product is the producer himself . . . direct active
communication is realised . . . specialisation, hierarchy and separation end’. It is the
institution that is fundamentally anti-institutional; the form of representation which
‘already knows that it does not represent the working class’ but only actuates
‘the generalisation of communication’; the organisation which recognises ‘its own
dissolution as a separate organisation’; the power which does ‘not compromise with
any form of separate power’ and which ‘cannot reproduce within itself the dominant
society’s conditions of separation and hierarchy’; the government which places no
limit on participation and which ‘can no longer combat alienation with alienated
forms’ (§119). In the Commune activity in the ﬁrst person replaces mere contem-
plation of the actions of a party or leader: ‘in the power of the workers’ councils . . .
the proletarian movement becomes its own product; this product is the producer
himself’ (§117). This crafted image of ‘true democracy’ is vulnerable, however,

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both to the realist criticism that, viewed as an institutional system and bared of its
revolutionary mystique, the Commune has its own tendencies toward hierarchy,
centralisation and alienation, and to the rationalist criticism that, judged in terms of its
capacity for rational decision-making, the face-to-face structures of the Commune fall
victim to the vagaries of public opinion, the contingencies of the loudest voice, or the
machinations of the best organised faction.

5 Stahl writes that Hegel’s ‘natural law can be truly understood only when one remem-

bers that . . . everything is designed to obtain from human relationships a system in
which each concept transcends itself, leads to its opposite, and by reunion creates
a third . . . Whenever a rule of thought serves as the actual producer, as does the
dialectic here, rigidity is unavoidable, and things only count in the sense in which
the logical demonstration requires . . . Hegel reproached Kant that, from Kant’s
purely formal laws, collective ownership of property may be as easily deduced as
private ownership, but the same is the case to an even higher degree in Hegel’s
formal movement . . . any deduction is purely a matter of whim . . . the essence of
Hegel’s philosophy consists in converting irrationality and compulsion, by means
of speculative-dialectical deduction, into reason and freedom . . . But in social reality,
wrong cannot thus be turned into right or compulsion into freedom . . . If thought
determinations are declared to be all that exists, then personality has a derivative,
subordinate existence; it is there only as a means to realise the relationships of mind .
. . Freedom then is not the situation in which individuals may freely choose. Rather it
consists of those circumstances in which they cannot . . . It is not the human being
but the rules of mind that must be free . . . It is not the human beings who act in
history . . . but rather the logical law of the three moments’ (Richard Hyland’s
translations of F. Stahl, ‘Hegels Naturrecht und Philosophie des Geistes’ in 1 Materialien
zu Hegels Rechtsphilosohie, ed. M. Riedel, 1975).

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R I G H T A N D VA L U E

Unity of Hegel and Marx

Marx’s doppelganger

If there is one way we should not read the relation between Hegel and Marx,
it is through Marx’s own account of it! Not only does he give us a distorted
and one-sided caricature of Hegel, but also a diminished view of himself. The ghost
of Hegel haunted Marx’s later writings. It arrived at once in the shape of a debt
Marx wished to pay and a wrong he wished to rectify. On the one hand, he praised
Hegel for having discovered the ‘correct laws of the dialectic’; on the other, he
criticised him for presenting the dialectic in an idealistic and mystifying form. In
1858 Marx wrote to Engels:

In my method of working it has given me great service that by mere
accident I had leafed through Hegel’s Logic again and found much to assist
me in the method of analysis. If I ever have the time for that kind of work
again, I would ﬁnd great pleasure in writing two or three pages on the
rationale which Hegel discovered – but also mystiﬁed – to make it accessible
for the common man.

(Letters 50)

In March 1868 he wrote to Kugelman:

my method of argument is not Hegelian, since I am a materialist, Hegel
is an idealist. Hegel’s dialectic is the basis of all dialectic, but only after
the disposal of its mystical form.

(Letters 126)

In his 1873 ‘Postface’ to the second German edition of Capital, he recalled both
aspects of his relation to Hegel:

The mystiﬁcation which the dialectic suffers in Hegel’s hands by no means
prevents him from being the ﬁrst to present its general forms of motion
in a comprehensive and conscious manner. With him it is standing on

its head. It must be inverted in order to discover the rational kernel
within the mystical shell.

Marx emphasised that his own dialectic method was ‘not only different from
the Hegelian, but exactly opposite’. Just as he represented Hegel as a philosopher
who transformed the process of thinking into an independent subject and the real
world into the external appearance of the Idea, so too he presented himself
as the social critic who recognises that ‘the ideal is nothing but the material world
reflected in the mind of man and translated into forms of thought’. Just as he
represented Hegel’s ‘mystical form of the dialectic’ as a philosophy of the state
which only became the fashion in Germany because it functioned to ‘glorify what
exists’, so too he presented his own ‘rational form of the dialectic’ as

a scandal and an abomination to the bourgeoisie . . . because it includes
in its positive understanding of what exists a simultaneous recog-
nition of its negation, its inevitable destruction; because it regards
every historically developed form as being a ﬂuid state, in motion, and
therefore grasps its transient aspects as well; and because it does not let
itself be impressed by anything, being in its very essence critical and
revolutionary.

(Capital 1. 102–3)

Marx constructed ‘Hegel’ as the philosopher who transmuted historical into logical
categories, the better to construct himself as the critic of all existing conditions
who puts the dialectic back on its feet and revealed the ‘historical specificity’
both of the social forms of bourgeois society and of the social sciences which
sought to comprehend them. Hegel was Marx’s double or doppelganger. Yet when
others dared to criticise him, Marx thundered against these ‘pompous, pseudo-
scientific professors’ and ‘ill-humoured, arrogant and mediocre epigones’ who
understood nothing of Hegel’s method and treated him as a ‘dead dog’ no longer
to be taken seriously (Letters 167–8). He saw himself as sitting on the shoulders
of a giant and, thanks to this support, reaching higher and seeing further than all
before him.

Most secondary discussions of Marx’s writings have followed Marx’s own

presentation of his relation to Hegel. Lenin’s daunting observation that ‘it is
impossible completely to understand Marx’s Capital . . . without having thoroughly
studied and understood the whole of Hegel’s Logic’, has been echoed in less exacting
form by many contemporary commentators – especially since the republication of
the Grundrisse, the ‘Rough Draft’ of Capital. Many commentators have observed
how much Hegel’s influence was manifest in this text. For example, in his
introduction to the Grundrisse Martin Nicolaus comments (Marx 1973): ‘If one
considers not only the extensive use of Hegelian terminology in the Grundrisse,
not only the many passages which reflect self-consciously on Hegel’s method
and the use of the method, but also the basic structure of the argument in the

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Grundrisse, it becomes evident that the services rendered Marx by his study
of the Logic were very great indeed.’ In his seminal commentary on The Making of
Marx’s Capital, Roman Rosdolsky writes: ‘If Hegel’s inﬂuence on Marx’s Capital
can be seen explicitly in only a few footnotes, the Rough Draft must be designated
as a massive reference to Hegel, in particular to his Logic . . . The publication of
the Grundrisse means that the academic critics of Marx will no longer be able to
write without ﬁrst having studied his method and its relation to Hegel’ (Rosdolsky
1980: xiii). David McLellan writes in a similar vein: ‘The most striking passage
of the Grundrisse in this respect is the draft plan for Marx’s Economics which is
couched in language (such as the distinction between essence and appearance)
that might have come straight out of Hegel’s Logic’ (McLellan 1980: 13). Few
Marxist commentators have challenged Marx’s own view that Hegel’s idealism
hangs a ‘shroud of mysticism over the leaping soul of his dialectic’ or that it casts
‘absolutist benedictions on the state’ (Nicolaus in Marx 1973: 26–7). Rosdolsky
introduces a slight note of scepticism about Marx’s claims to exorcise the ghost of
Hegel’s idealism when he emphasises Marx’s debt to Hegel ‘irrespectively of how
radically and materialistically Hegel was inverted!’, but he regrets that he could
only touch upon ‘the most important and theoretically interesting problem
presented by the “Rough Draft” – that of the relation of Marx’s work to Hegel, in
particular to the Logic’.

Recently, some Marxist scholars have began to challenge Marx’s account of his

relation to Hegel. David MacGregor speaks of ‘the myth of Hegel as the idealist
who had everything upside down’ (MacGregor 1984: 3 and 1998: 2–4). Ian Fraser
comments that ‘Marx may not have seen this but his “own” dialectic clearly
parallels that of Hegel . . . the dialectic of Hegel is the dialectic of Marx’ (Fraser
1997: 103; see also Fraser 1998: 34). From another vantage point, Allen Wood
acknowledges that ‘there is a greater afﬁnity between the Hegelian and Marxian
theories of history than Marx usually acknowledges’ (Wood 1993: 433). These
revisionist accounts of the Hegel–Marx relation indicate a growing awareness that
Marx was wrong about Hegel: that Hegel’s dialectic was not mystical, did not
confuse thought and reality, did not glorify what exists, did not turn the world
upside down. However, they open up the debate on terms set by Marx himself.
Hegel is presented as a Marxist avant le nom and Marx’s mistake lay only in his
failure to see that Hegel’s dialectic was the same as his own. No consequence is
seen to ﬂow from this error of interpretation except in regard to Hegel’s reputation.
Hegel is incorporated into an already established Marxist canon. If we push this
line of argument further, however, we have to confront the possibility that if Marx
was wrong in his assessment of Hegel, this was a sign of some substantial limitation
in his own understanding of political modernity.

Methodological afﬁnity

In Marx’s discussion of ‘the method of political economy’ with which he opens the
Grundrisse, he characteristically presents himself as overcoming Hegel’s confusion

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of the real and thought about the real. He claims to distinguish, in a way that
Hegel did not, between the process by which the concrete comes into being and
the way in which thought appropriates the concrete:

The concrete is concrete because it is the concentration of many
determinations . . . It appears in the process of thinking, therefore, as
a process of concentration, as a result, not as a point of departure, even
though it is the point of departure in reality . . . Hegel fell into the illusion
of conceiving the real as the product of the thought concentrating
itself, probing its own depths and unfolding itself out of itself, by itself,
whereas the method of ascending from the abstract to the concrete
is only the way in which thought appropriates the concrete, reproduces
it as the spiritually concrete. But this is by no means the process by which
the concrete itself comes into being.

(Grundrisse 101)

According to this account, the rational kernel of Hegel’s dialectic lies in its

analysis of the movement of concepts and of the transition from one concept into
another, but the mystical shell consists of its confusion of the movement of
concepts with reality.

Hegel is accused of confusing ‘the development of the

moments of the notion’ with the development of the concrete itself. Against this
mystical form of the dialectic, Marx asserts that the dialectic is not logical but
historical; that its driving force is not the ‘notion’ but the bourgeois economy; that
it is not a self-affirming movement from one logical category to another, from
‘identity to difference to opposition and on to contradiction’, but a movement
from one historical form to another – from commodity to money and on to capital.
Hegel, according to Marx, assumes that the presupposition and the results of
the dialectic continue indefinitely to form a logical circuit. Marx, according
to Marx, recognises the historical character of bourgeois society – that it is not
a closed system which ideal subjects indefinitely reproduce, but a transitory
formation based upon historical presuppositions, torn apart by class struggles and
open to revolutionary possibilities. In his ‘Notes on Adolph Wagner’ Marx makes
explicit the contrast, as he sees it, between his own historical methodology and the
merely conceptual character of Hegel’s dialectic:

I do not start out from ‘concepts’, hence I do not start out from ‘the
concept of value’ and do not have to ‘divide’ these in any way. What
I start out from is the simplest social form in which the labour-product is
presented in contemporary society, and this is the ‘commodity’. I analyse
it and right from the beginning, in the form in which it appears.

(Marx 1975: 198)

This is Marx’s version of events. He makes Hegel merely conceptual and logical,
and he makes himself historical and material. He identifies Hegel with the

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transmutation of social relations into timeless logical categories, and he identiﬁes
himself with recognition of the historically speciﬁc character of capitalist social
relations. Against a Hegel who gets everything upside down, he puts himself
forward as the one who ﬁnally put things right.

Marx was ﬁghting against a ghost of his own making. The historical character of

Hegel’s analysis of the forms of right was no less pronounced than that of Marx’s
analysis of the forms of value – even if both are presented in the form of a logical
construction. In the Philosophy of Right and in Capital the subject matter under
consideration and the critical consciousness that attempts to grasp it are both
conceived historically – as the forms and shapes of modern bourgeois society
and as the cognition that is made possible by that society. When Marx wrote
of the categories of political economy, that they express the ‘forms of being,
the characteristics of existence, and often only individual sides . . . of modern
bourgeois society’, this was but an echo of what Hegel had already said of the
categories of political philosophy (Grundrisse 106).

Indeed, we ﬁnd no better way of illuminating Hegel’s methodological approach

to the philosophy of right than to consider it in relation to Marx’s critique
of political economy. In the introduction to the Grundrisse, Marx points out
that it may seem to be correct to begin with the ‘real and the concrete, with
the real precondition, thus to begin in economics with e.g. the population’.
On closer examination, however, he argues that this proves false. Why is it false
to begin with ‘the real and the concrete’? Because the real and concrete is ‘the
concentration of many determinations’. Population, for instance, presupposes
classes; classes presuppose wage labour and capital; wage labour and capital
presuppose money; money presupposes exchange value and the commodity form.
These are the elements which make up the ‘chaotic conception of the whole’. Marx
writes:

If I were to begin with population, I would then . . . move analytically
toward ever more simple concepts [Begriff] from the imagined concrete
toward ever thinner abstractions until I had arrived at the simplest
determinations. From there the journey would have to be retraced
until I had finally arrived at the population again, but this time not
as the chaotic conception of the whole but as a rich totality of many
determinations.

(Grundrisse 100)

Marx identiﬁes the ﬁrst path, which he calls the analytic path, with economics at
the time of its origins, and the second path, which he calls the genetic or dialectical
path, with economic systems which ascend from simple relations (value, exchange
value, etc.) to the level of the concrete totality (the state, exchange between
nations, the world market, etc.). The latter, Marx adds, ‘is obviously the scien-
tifically correct method’. Marx continues to follow closely in Hegel’s footsteps
when he asks:

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do not these simpler categories also have an independent historical
or natural existence predating the more concrete ones? That depends.
Hegel, for example, correctly begins the Philosophy of Right with
possession, this being the subject’s simplest juridical relation’.

(Grundrisse 102)

Marx was not quite right. Hegel did not begin his Philosophy of Right with the
idea of possession in general but rather with the idea of ‘abstract right’. This error
led Marx into some confusion. He admonished Hegel for saying that possession
develops historically into the family, something which Hegel never said, and he
argued that possession always presupposes some more concrete communal category,
something which Hegel did say. Marx echoed Hegel’s argument, however, when
he observed that historically there are families in which there is possession but
no private property and that to understand the modern form of family, we must
see it in relation to private property. The point here is not to score points between
Hegel and Marx but to recognise, as Marx put it, that the simpler category (say
private property) may have an historical existence before the more concrete
category (say the family), in which case the path of abstract thought, rising from
the simple to the complex, would correspond with the real historical process, even
if it achieves its full development only with the emergence of the more complex
category. Marx followed Hegel, however, when he argued that it would be wrong

to let the economic categories follow one another in the same sequence
as that in which they were historically decisive. Their sequence is
determined, rather, by their relation to one another in modern bourgeois
society . . . The point is not the historic position of the economic
relations in the succession of different forms of society . . . Rather, their
order within modern bourgeois society.’

(Grundrisse 107)

The order of presentation begins with the simple and the abstract and moves to
the complex and the concrete. It is governed by logic, not by history. In beginning
with the commodity form, Marx acknowledged that this starting point may
correspond to some historical event – e.g. a barter between communities prior to
all money relations – but the signiﬁcance of this event lies not in its historical
eventfulness but in its being the simplest economic form of the capitalist age.

Marx added a further comment on the illusions which may derive from the mode
of presentation of this inquiry:

Of course, the mode of presentation must differ in form from that of
inquiry. The latter has to appropriate the material in detail, to analyse
its different forms of development and to track down their inner
connection. Only after this work has been done, can the real movement
be appropriately presented. If this is done successfully, if the life of the

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subject matter is now reﬂected in the ideas, then it may appear as if we
have before us an a priori construction.

(Capital 1. 102)

In this passage Marx acknowledges that his own scientiﬁc analysis of the economic
forms of bourgeois society, if done successfully, will appear as an a priori construc-
tion. He does not acknowledge, however, that this might be equally true of Hegel’s
Philosophy of Right. He cannot shake off the prejudice that the latter must be an
a priori construction.

Marx did not realise quite how closely his own ‘method’ followed Hegel’s

approach in the Philosophy of Right. Having started with the simplest and most
abstract form of their subject matter, both Hegel and Marx progress to more
complex and concrete forms. In relation to the political forms of the modern age,
Hegel argued that the simplest and most abstract element is abstract right and he
analyses its self-division into ‘person’ and ‘thing’. In relation to the economic forms
of the modern age, Marx contended that the simplest and most abstract element
is the commodity and he analysed its self-division into value and use value. For
Hegel, the movement is from abstract right through contract and law to the state.
For Marx, it is from value through exchange value and money to capital. Hegel
and Marx both begin with the analysis of simple forms which permit them to
explain other more developed forms and in their presentation they order the forms
according to their increasing complexity, so that at every level the theory can be
formulated in terms of concepts elaborated at the previous level. Neither in Hegel
nor in Marx are we presented with the ‘empirically existent’, for both the forms
of the state and the forms of capital abstract from all the contingencies, accidents
and differences which they possess in actual political and economic systems.
But in neither case are we given an a priori construction. If we ignore Marx’s
misleading comments about ‘putting Hegel back on his feet’, we ﬁnd that there is
no better practitioner of his scientiﬁc method. Their objects of investigation are
different – Marx analyses the economic forms of modernity and Hegel analyses its
legal and political forms – but their approach to scientiﬁc investigation is, roughly
speaking, the same.

Marx’s critique of ‘right’

Marx’s Capital was a critique of political economy. It was not an economics text
but a study of a society dominated by the dull compulsion of economic forces,
not an exercise in economic determinism but an analysis of a society in which
economic determinism prevails. The subject matter of Capital comprises the
inhuman, alienated, exploitative relations hidden behind the fetishised forms
of modern economic rationality. To accuse Marx of economism, as many of his
critics have done, is to miss the mark inasmuch as Capital was a critique of a society
which actualises economism – that is, of a society in which the exchange of things
is a primary condition of intersubjectivity, things appear as bearers of value, access

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to things is mediated by the ability to purchase them, and human activity
is determined by the movement of things and the fluctuations of the market.
It is a world in which everything has its price, even the capacities of our body
and mind, and humanity has become the slave to the products of its own labour
(Rubin 1972). It is misleading, therefore, to say that Marx treated the economy
as the base on which legal, political and ideological superstructures rest. Marx
was not consistent in his use of terminology but if we can still speak of a base, it
is constituted in his work by social relations of production and exchange and not by
the economic forms taken by the products of human labour. The imagery which
informs Capital, however, is not that of base and superstructure but rather form
and content – economic form and social content.

Marx maintained that the classical political economy of Smith and Ricardo had

made considerable advances in understanding the economic forms of the modern
age – value, exchange value, price, money, capital, interest, rent, proﬁt, etc. – but
he argued that it naturalised ‘labour’ as the origin of value without questioning
under what circumstances labour takes this form. He argued that in analytical
terms political economy was strong: it perceived, for example, that the magnitude
of value was determined by the average amount of labour time that goes into
the production of a commodity. But dialectically political economy was weak:
it treated commodity form as a natural fact of life rather than as the product of
historically determinate relations. Marx saw himself as the ﬁrst to comprehend
adequately the historical specificity of the value form and release it from the
naturalistic framework in which it had previously been imprisoned.

Marx pushed the idea of ‘the social’ beyond anything conceived or conceivable

within the natural law tradition. One weakness of Marx’s approach, however, was
that it could give the impression that the economic forms of capitalist social
relations are their only forms, or at least that they are the essential forms of capitalist
society, and that other non-economic forms – moral, legal, political, cultural, etc.
– are in some sense epiphenomenal or inessential or even illusory. While we must
recognise that Marx offered a critique of political economy, not an economics,
there still remains something rather one-sided in the way he treated the economic
as the privileged sphere of contemporary social life. This one-sided view of capi-
talist social relations is necessarily unconvincing to readers who seek recognition
of the fact that modernity also conveys ideas of personality, free will, romantic
love, moral agency, individual right, legal equality, collective self-regulation, etc.
The individual is after all a juridical, moral, political, cultural and erotic subject
as well as a ‘bearer’ of economic forces. The great difﬁculty that faced Marx’s social
theory was how to move, to use a phrase borrowed from Edward Thompson’s
Poverty of Theory, from the circuits of capital to capitalism as a whole. There is
a sense in which Marx was in Thompson’s words still ‘trapped within the circuits
of capital’ and ‘only partly sprung that trap in Capital’, a sense in which he was
sucked into the ‘theoretical whirlpool of Political Economy’ whose categories were
interrogated and reinterrogated but whose main premise, the possibility of isolating
the economic from other ﬁelds of social study, was left intact (Thompson 1978:

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355). E. P. Thompson draws our attention to how far the structure of Capital is
dominated by the categories of its antagonist, those of the economic sphere, and
remains ﬁxed within this order of things. Marx’s failure to explore other subjects
was symptomatic of a certain imprisonment within the economic categories whose
social content he dedicated himself to uncovering. There is more to capitalism than
the circuits of capital: there is Kant as well as Bentham, political philosophy as well
as political economy, the fetish of the subject as well as the fetish of the commodity,
the illusions of ‘free creative practice’ as well as those of economic determinism.

Marx himself was aware of the limitations of a critique in which ‘the connection

of political economy with the state, law, morality, civil life, etc. is only dealt with
in so far as Political Economy itself professes to deal with these subjects’. He never
abandoned the ambitious life-project of his youth: to ‘present one after another a
critique of law, of morality, politics, etc. . . . and then finally . . . to show the
connection of the whole’. Although Marx’s main concern in the Grundrisse and
Capital was with the economic forms taken by the products of human labour, we
ﬁnd on the margins of these texts the beginnings of a critique of the idea and forms
of right. The hypothesis at the margins of Marx’s work is that the same social
relations which transform the products of human labour into bearers of exchange
value, also transform the producers themselves into bearers of right, and that the
illusions of the commodity form are somehow paralleled by the illusions of free
subjectivity. If we pull together the fragmented pieces of Marx’s argument, we ﬁnd
something like this.

Marx maintained that in all societies there must be some form of possession but

that it would be ‘ridiculous’ to make a leap from the general category of possession
to the distinct social and historical form of private property. He contrasted modern
private property with pre-capitalist forms of possession. For example, he wrote that
in the ancient world

the appropriation of land, tools, etc. is done on the basis of the individ-
ual’s existence as a member of the community . . . an isolated individual
could no more have property in land and soil than he could speak . . . the
individual can never appear here in the dot-like isolation in which he
appears as mere free worker.

(Grundrisse 485)

Marx argued that the modern idea of private property, that individuals have a right
to own and exchange the products of their own labour, would have been entirely
alien to this world, but he no more romanticised the ancient world than did
Hegel. He wrote that the ancient view according to which the good citizen rather
than wealth was considered the aim of production, may appear ‘very lofty when
contrasted to the modern world where production appears as the aim of mankind
and wealth as the aim of production’; but what is wealth, he asked, other than
‘the universality of individual needs, capacities, pleasures, productive forces . . .
the full development of human mastery over the forces of nature, those of so-called

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nature as well as humanity’s own nature?’ (Grundrisse 488). In any event, in
antiquity those who did not belong to the community might appear among the
‘objective conditions of production’ as slaves, and in Roman law they were
distinguished ‘only as instrumentum vocale from an animal which is instrumentum
semi-vocale and from a lifeless implement which is instrumentum mutum’ (Capital
1. 303). There was no more nostalgia for the ancient world in the older Marx than
there was in the older Hegel.

Marx argued that the kind of society which gives rise to modern forms of private

ownership is the same as that which gives rise to the commodity form. They are
merely two sides of the same medal. It is one based on production by independent
producers whose contact with each other is mediated through the exchange
of products on the market. Producers are free to produce what and how much
they wish; they are equal in that no producer can force others to produce or expro-
priate their products against their will; they are self-interested in that they are all
entitled to pursue their own private interests regardless of what others think or
do. Their contact with other producers is left to their own desires and it takes
the form of free and equal exchanges in which individuals alienate their own
property in return for the property of another. This exchange of unneeded things
in return for useful things is done for the mutual beneﬁt of each party. The exchange
relation makes no reference to the circumstances in which individuals seek to
exchange, nor to the characteristics of the commodities offered for exchange. It
appears as a self-sufficient relation, divorced from any particular mode of
production and enjoyed among free and equal property owners who enter a
voluntary contract in pursuit of their own mutual self-interests. In an exchange
relation, Marx wrote:

each confronts the other as owner of the object of the other’s need, this
proves that each of them reaches beyond his own particular need . . . as
a human being and that they relate to each other as human beings . . .
there enters in addition to the quality of equality, that of freedom.
Although individual A feels a need for the commodity of individual
B, he does not appropriate it by force, nor vice versa, but rather they
recognise one another reciprocally as proprietors, as persons whose will
penetrates their commodities. Accordingly, the juridical moment of the
Person enters here. . . all inherent contradictions of bourgeois society
appear extinguished . . . and bourgeois democracy even more than the
bourgeois economists takes refuge in this aspect.

(Grundrisse 243, 251)

It appears that the common interest that arises in exchange is not opposed to the
particular interests of individuals but is based on their reciprocal development.
The only compulsion which enters into the relation stems from the individual’s
own needs and drives. The parties to the exchange must place themselves in
relation to one another as persons whose will resides in those objects and must

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behave in such a way that each does not appropriate the commodity of the other
and alienate his own, except through an act to which both parties consent.

The sphere of circulation of commodity exchange, within whose bound-
aries the sale and purchase of labour power goes on, is in fact a very
Eden of the innate rights of man. It is the exclusive realm of Freedom,
Equality, Property and Bentham. Freedom because both buyer and seller
of a commodity, let us say labour-power, are determined only by their
own free will . . . Equality because each enters into relations with the
other as with a simple owner of commodities and they exchange equiva-
lent with equivalent. Property because each disposes only what is his own.
And Bentham because each looks only to his own advantage. The only
force bringing them together is the selﬁshness, the gain and the private
interest of each.

(Capital 1. 280)

Marx describes the juridical relation between two wills as a ‘mirror’ of
the economic relation. A mirror is an image, a reﬂection, it is not the real thing.
It is the economic relation alone that is solid and substantial. He argues that the
illusions of private property are soon dispelled once we relate exchange relations
to production. The presupposition of exchange is the organisation of production
which forces producers to exchange their products. Their actual interdependence
means that individuals cannot survive except by exchanging the products of their
labour and this interdependence determines both the form and content of
their private interests:

The private interest is itself a socially determined interest, which can be
achieved only within the conditions laid down by society and with the
means provided by society.

(Grundrisse 156)

Both the form of their interconnections, that of a contract between two private
parties based on the exchange of their property, and their content, the terms
on which such contracts are made, are beyond the will of individuals and become
a power over them. Individuals may appear to be independent but only if we
abstract from these background conditions.

These external relations are very far from being an abolition of ‘relations
of dependence’; they are rather the dissolution of these relations in a
general form . . . Individuals are now ruled by abstractions, whereas earlier
they depended upon one another. The abstraction is nothing more than
the theoretical expression of those material relations which are their lord
and master.

(Grundrisse 163)

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Individuals appear to be free and equal but are ruled by abstractions. Marx argued
that the illusions of a free and equal relationship are dissolved once we explore
the content of exchange: ‘Equal right . . . is a right of inequality in its content like
every right’ (Marx 1968: 320). This becomes more evident when we consider the
transition from commodity to capitalist production in the course of which ‘the
form and content [of equal right] are changed’.

Where commodity production is sporadic or peripheral and exchange takes

the form of an occasional barter between communities, the terms of the exchange
are determined by the producers themselves and each party has a right to defend
its property by force of arms. With the generalisation of commodity production,
competition between producers ensures that commodities exchange at or around
their values, that is, according to the ‘socially necessary labour time’ that enters
into their production. Since there is no guarantee that the actual labour-time
taken by the producer corresponds with socially necessary labour-time for the
goods in question, equal right in these circumstances entails that some producers
exchange their commodities for more than their value and some for less. This
necessarily leads to the impoverishment of some and enrichment of others: ‘if one
grows impoverished and the other grows wealthier then this is of their own free
will . . . even inheritance does not prejudice this natural freedom and equality.’
Under these circumstances producers must be ‘forced to be free’, that is, to
recognise the rules governing the exchange of things. Logically the development
of capital and wage labour is an extension of generalised commodity exchange,
though historically this transition may be blocked or the order of development
may be different. The new relation between capitalists and wage-labourers
continues to take the form of free and equal exchanges but the form and content
of this exchange have now changed. On the surface the relation between capitalist
and worker is a simple exchange:

a worker who buys a loaf of bread and a millionaire who does the same
appear in this act as simple buyers . . . all other aspects are extinguished
. . . the content of these purchases appears as completely irrelevant
compared with the formal aspect.

(Grundrisse 251)

The exchange between capitalist and worker appears like any other exchange,
but it is in fact distinguished by the entry into the market of a new commodity,
that of labour-power, whose historical presupposition lies in the ‘double freedom’
of individuals – their freedom to own their body, mind and capacity to work, and
their freedom from other means of subsistence or production than their labour-
power. The buyer of labour-power is no longer a simple buyer who wishes to
use it as an object of personal consumption but rather a capitalist who uses it
speciﬁcally for the production of surplus value. The secret behind the exchange
between capital and labour is that workers receive in the form of wages a value
equivalent to the value of their labour-power (i.e. the labour time socially

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necessary for the reproduction of the labourer) and not equivalent to the value
of the products they produce on behalf of the capitalist. In this context, the
appropriation of unpaid surplus labour becomes the substance of ‘equal right’.

Turning to the reproduction of capitalist society, Marx argued that the social

content of the exchange between capital and labour changes once more. Looked
at individually, the exchange between capital and labour consists of the expro-
priation of part of the product of the workers’ labour by the capitalist. The
capitalist says that the capital which he exchanges for labour-power is his
own private property – perhaps because he worked hard for it or because it is the
product of his own earlier labour. This may be true of primitive accumulation,
even if it ignores the role of robbery, terror and international pillage, but after
several cycles of production the entire capital owned by the capitalist will consist
only of capitalised surplus value, that is, of the product of the labour of workers
expropriated by the capitalist and turned into capital. It is now revealed that the
exchange between capital and labour is no exchange at all, since the total capital
is but a transmuted form of the expropriated product of workers from a previous
period. On the surface, free and equal exchange carries on. Beneath the surface,
however, there is the appropriation of the property of one class by another without
equivalent:

Originally, the rights of property seemed to us to be grounded in man’s
own labour . . . Now, however, property turns out to be the right on the
part of the capitalist to appropriate the unpaid labour of others or its
product and the impossibility of the worker of appropriating his own
product. The separation of property from labour thus becomes the
necessary consequence of a law that apparently originated in their
identity.

(Capital 1. 729)

The law which presupposes that we own the products of our labour ‘turns
. . . through a necessary dialectic into an absolute divorce of property and
appropriation of alien labour without exchange’ (Grundrisse 514). Marx’s argu-
ment reaches its climax in the conclusion that in this context abstract right is
a ‘mere semblance’, a ‘mere form . . . alien to the content of the transaction’, a
‘mystiﬁcation’, ‘only a semblance and a deceptive semblance’.

Marx’s social theory of right was developed in fragments, but its core proposition

was that the same social relations of production which give rise to the ‘commodity
form’ of the products of human labour also give rise to the ‘right-form’ of the
producers themselves. Put at its very simplest, the imagery implicit within Marx’s
analysis goes something like that in Table 5.1. If we take this account seriously,
then both economic and political categories, and the split between them, appear
as consequences of determinate social relations of production. We might say that
modernity is the separation of the political and the economic and that this
separation expresses a deeper social phenomenon: the diremption of subject and

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object, person and thing, that occurs in modern society. This is a very fruitful thesis
which Marx himself only touched on. The difﬁculty as far as Marx was concerned,
and perhaps the reason why he did not pursue the idea, is that he ‘neglected the
formal side of political, juridical and other ideological notions – the way in which
these notions come about – for the sake of their inner content’ (Engels, Letter to
Mehring, 1893). In principle this limitation could be addressed and remedied, but
instead the parallel between Marx’s critique of political economy and his critique
of political philosophy broke down. Both are studies of illusion, but in the former
the forms of value are understood as ‘real appearances’ and as substantial as their
content; in the latter, if we stop where Marx ended his critique of right and give
it a premature sense of completion, we are left with the presentation of right as a
mere form, a semblance, an empty illusion. If the surface form of a thing is as real
as its social content, and if neither can be equated with the thing in itself,
so too the form of a person is as real as its social content and the person should
be seen as the unity of form and content or as Hegel would have put it, the idea
of the person is the unity of the concept and the actualisation of the concept.

The consequence of treating Marx’s critique of right as if it were complete has

been detrimental to Marxism in three main ways. First, there is little or no inves-
tigation of the development of the idea of right into the more complex forms
of morality, law, civil society, the state, etc., such as we find both in Hegel’s
philosophy of right and in Marx’s own analysis of the development of the value
form into exchange value, money, capital, proﬁt, etc. As a result, the idea of right
is presented in a static, undialectical, non-developmental manner. Second, the
equation of the idea of ‘form’ with that of mere semblance or illusion is used to
negate the signiﬁcance or validity of right itself. This encourages a nihilistic trend
within Marxism in relation to the forms of bourgeois law (though it was one which
Marx himself generally resisted). Third, least noticed but most important of
all, Marx’s focus on the illusory character of right leads to a neglect of its fetishistic
aspect. This is important because it is the fetishism of the subject within the
modern system of right that lies at the source of all totalitarian tendencies within
the modern system of right. Marx’s social theory of right goes some way towards
addressing the one-sidedness of his critique of political economy and is extremely
revealing about the connections between right and its economic content; but the

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Table 5.1 Imagery in Marx’s theory of right

Forms of the
subject

Right

law

state

Social relations
of production

SCP

GCP

Forms of the object Value

money

capital

(SCP = simple commodity production; GCP = generalised commodity production; CP = capitalist
production)

question of the ‘will’ remains largely hidden from view. The theory of fetishism is
not only a theory of illusion but a theory of power. The fetishism of the commodity
is not only about the illusions of economic determinism but also about the real
determination of people by the movement of things. Analogously, the fetishism
of the subject is not only about illusions of free will but also about the abstract
forms of domination created when the will becomes the triumphant organising
principle of political life.

The opposition Marx set up between Hegel’s ‘logic’ and his own ‘historical’

method, only heightens the difﬁculty. Hegel did not reduce history to logic, as
Marx imagined, he did not transform the historically speciﬁc forms of bourgeois
society into timeless logical categories. On the contrary, Hegel expressed the unity
of the ‘absolute’ and the ‘ﬁnite’ in the shape of a struggle between two aspects of
the self:

I raise myself in thought to the Absolute . . . thus being infinite
consciousness; yet at the same time I am ﬁnite consciousness . . . Both
aspects seek each other and ﬂee each other . . . I am the struggle between
them.

Hegel had good reason to reafﬁrm the unity of history and logic. To grasp the fact
that a particular social form is historical – that it came into being and that it can
be surpassed – tells us little about what it is, what gives it life, how it functions,
whether it ought to be surpassed, wherein lies its rationality, etc. To understand
a social phenomenon, we need to keep both sides in mind: history and logic, the
ﬁnite and the inﬁnite. In practice, at least in their ‘mature’ writings, Hegel and
Marx both afﬁrm the unity of history and logic. However, in imagining that Hegel
subsumes history to logic, Marx ends up merely reversing this order of priority. He
turns the idea of ‘historical speciﬁcity’ itself into a doctrine which binds all truth
to speciﬁc historical situations, except of course the truth of this doctrine itself.
This idea of ‘history’ reveals the transitoriness of things, but nothing of their depth
or weight. The rationalisation of historical categories and the historicisation of
rational categories are two sides of the same coin.

For example, in an ambitious attempt to reconstruct critical theory for our

own times, Moishe Postone goes further than Marx himself when he writes that
not only are the economic forms of capitalist society ‘historically speciﬁc’ but so
too are the categories Marx employs to analyse these forms, including that
of labour. The charge Postone lays against ‘traditional Marxism’ is that it does
not historicise enough: it mistreats aspects of Marx’s theory, say the mode of
production in contrast with the mode of distribution, as transhistorical. Against
‘traditional Marxism’, Postone insists that the commodity form is a historically
speciﬁc form of social wealth, that industrial production is a historically speciﬁcal
form of production, that the working class is a historically speciﬁc form of class
organisation and interest, that the opposition between subject and object is a

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historically speciﬁc relation between people and things, that labour is a historically
speciﬁc category of analysis, and that critical theory is itself a historically speciﬁc
form of theorising. The term ‘historical speciﬁcity’ punctuates and pervades the
text. It becomes in Postone a hallmark of critical theory.

For Postone, however, this idea of history (or historical specificity) is not

associated with depth but rather with the possibility of ‘transforming’, ‘over-
coming’, ‘abolishing’, ‘superseding’, ‘transcending’ and ‘destroying’ the actual forms
of social life. Since even critical theory is itself historically speciﬁc, he argues that
its final aim must be its own self-destruction: ‘the historicity of the object . . .
implies the historicity of the critical consciousness that grasps it: the historical
overcoming of capitalism would also entail the negation of its dialectical critique’
(Postone 1996: 143). The self-sacrifice of critical consciousness takes the idea
of ‘historical speciﬁcity’ much further than Marx, who as far as I know expressed
no desire to live in a society in which critical theory has abolished itself.

In The Communist Manifesto (1847–8: 243) Marx and Engels explicate the

destructive character of this self-consuming idea of history in their representation
of bourgeois culture. The image they drew from Shakespeare’s The Tempest is now
part of out political culture:

The bourgeoisie cannot exist without constantly revolutionising the
instruments of production and thereby the relations of production, and
with them the whole relations of society . . . Constant revolutionising
of production, everlasting uncertainty and agitation distinguish the
bourgeois epoch from all earlier ones. All ﬁxed, fast frozen relations, with
their train of ancient and venerable prejudices and opinions, are swept
away, all new formed ones become antiquated before they can ossify.
All that is solid melts into air . . .

(Marx and Engels 1998: 243)

Bourgeois society is portrayed as leaving no other nexus between man and
man than naked self interest. It drowns religious fervour, chivalrous enthusiasm,
philistine sentimentalism in the icy water of egotistical calculation. It resolves
personal worth into exchange value. It strips of its halo every occupation hitherto
honoured. It reduces the family to a mere money relation. It profanes all that is
holy. It reduces freedom to the freedom of buying and selling. It reduces justice to
the will the class raised to law. For exploitation cloaked by religious and political
illusions it substitutes open, unashamed, direct, exploitation. For old complexities
it substitutes the simplicity of the conflict between capital and labour. For
everything that was permanent, ﬁxed and certain it substitutes convulsive expan-
sion and uncertainty. There is nothing that bourgeois society cannot destroy and
surpass – even itself.

Marx and Engels welcome the revolutionary iconoclasm of the bourgeoisie and

express no nostalgia for the annihilated past. Instead they endeavour to turn
the destructive nihilism of the bourgeois into the affirmative nihilism of the

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proletarian. If the bourgeois devalues all values, the workers are left like Nietzsche’s
‘last man’ without name, individuality or place. Nothing can be taken from the
worker because all has already been stripped: property, culture, family, marriage,
childhood, education, country, religion, morality. For the worker all values appear
as bourgeois prejudices, nothing is secure, the aim is to destroy all security. Workers
are slaves to labour, appendages to the machine, mere commodities to be bought
and sold on the market place. Communism is their movement. It has no interests
apart from those of the proletariat as a whole. Its seeks to abolish property, family,
independence, marriage, religion and nationality because capitalism has already
abolished them for the great majority. It aims to abolish political life because
political life is the organised power of one class for oppressing another. The workers
have a world to win, not by restoring old values but by harnessing the nihilism
of bourgeois culture. In History and Class Consciousness Lukacs (1971) captures
the spirit of this manifesto when he states that the consciousness of the worker is
the ‘self-consciousness of the commodity’ (1971: 168) and that it is only when
every human element has been taken away that it can reconstitute a world
‘uncontaminated by any trace of reiﬁcation’ (1971: 184).

After the defeats of the 1848 revolutions, a crucial development in Marx’s

political thought lay in his recognition that the modern worker is not a commodity
but the owner of commodities and therefore a subject of right, a person, a human
being in the historical sense of the term. Workers have more to lose than their
chains, which is just as well if they have a world to win. Their labour-power
has become a commodity, but they themselves possess their own labour power
as their property. It is this quality of personality that Marx now began to see as
the beginning of their long and arduous journey in the development of self-
consciousness.

After 1848 Marx moved towards Hegel. Before this meeting could occur,

however, dogmatic Marxism ﬁxed Marx’s one-sidedness into a lifeless doctrine.
It considered human beings merely as units in a chain of determined circumstances
and evaporated the ‘Hegelian’, active side of human life – the fact that we are
moral and intellectual beings capable of imagining and making our own history,
confronting adversity and surmounting the limitations imposed by circumstances.
It was this denial of human agency that Edward Thompson aptly dubbed Marxism’s
‘heresy against man’. One of the great difﬁculties facing Marxism has always been
how to respond to this heresy.

The main tendency of critical theory has been to treat the commodity form as

the ultimate determinant of all existing forms of social life, including the various
forms and shapes of right. In History and Class Consciousness Lukacs illustrated
or initiated this view when he declared that the chapter in Capital ‘dealing
with the fetish character of the commodity contains within itself the whole of
historical materialism’ (Lukacs 1971: 170), and that ‘at this stage in the history
of mankind there is no problem that does not ultimately lead back to that question,
and there is no solution that could not be found in the solution to the riddle
of the commodity structure’ (1971: 83). Lukacs presented the commodity as the

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‘universal category’ of the social totality (1971: 86) which determines the actual
world in all its dimensions, including the very ways in which we understand it.
According to Lukacs, the commodity form provides the key to the bourgeois
negation of historical consciousness: ‘the nature of history is precisely that every
definition degenerates into an illusion: history is the history of the unceasing
overthrow of the objective forms that shape the life of man’ (1971: 186).
According to Lukacs, the commodity form even explains the shape of modern
epistemology – the contemplative manner in which we, as subjects, become in
everyday life mere ‘spectators’ of a movement of commodities over which we have
no control, and the positivistic manner in which science regards ‘those “laws”
which function in – objective – reality without the intervention of the subject’
(1971: 128). Against this divorce of subject and object Lukacs looked to the
construction of a critical theory which would reconstitute the unity of subject and
object in a transformative rather than contemplative mode.

From this vantage point the idea of right appears essentially as a deviation from

the commodity form, a right over things and endorsement of the instrumental
manipulation of nature. It seems both to justify and to institutionalise a logic of
disintegration based on the triumph of instrumental rationality. Small wonder,
then, that in this image of a totally administered society the old school of critical
theory tended either to ignore the extension of legal freedoms or to view it as an
integral element in the reiﬁcation of social life. Small wonder too that in elevating
an essentially economic category, the commodity form, to a supreme status as the
key structuring principle of modern society as a whole, critical theory can locate
subjectivity only in the abstract ideal of ‘free creative praxis’ – free, that is, from
all the ‘commodified’ social forms of subjectivity: right, law, the state, science,
etc.

Far from addressing the fetishism of the subject, critical theory thereby repeats

it in an abstract, disembodied form. A different relation both to the idea of right
and to Hegel’s Philosophy of Right must be conceived.

The case for reading Hegel and Marx together

I have argued that if there is one way we should not read the relation between
Hegel and Marx, it is through Marx’s own account of it. This is because Marx
offers us a distorted and one-sided caricature of Hegel when he depicts him as an
idealist who set the world upside down or rather mirrored an upside-down reality.
What is more, in getting Hegel wrong Marx also gives us an illusory view of himself
as one who put both Hegel and the world back on its feet. In other words, Marx’s
representation of Hegel and his presentation of self are intimately connected and
both sides suffer.

And yet among all the commentators on Hegel, I think that Marx deserves pride

of place – not by virtue of what he has to say about Hegel, which is misguided, but
because he applied Hegel’s ‘method’ to his own critique of modernity in ways that
are extremely illuminating. Although Marx read Hegel in opposition to himself,
we can no longer understand what Hegel was doing in the Philosophy of Right

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without reading Capital, nor can we reconstruct what Marx was doing in Capital
without reading the Philosophy of Right. Although Marx always saw himself as
putting Hegel and the world he represented back on their feet, he in fact followed
Hegel’s more original approach to the ‘science of right’ in his own approach to the
critique of political economy. Their actual relation is one of close resemblance.
Marx’s approach to his subject matter was basically no different from Hegel’s: both
start from the simplest and most abstract elements of contemporary society;
both work upwards toward the more complex and concrete.

It is their subject matter that is different. In the Philosophy of Right Hegel

confronts the forms of right which constitute political modernity. In Capital Marx
confronts the forms of value which constitute economic modernity. The subject
matter of the Philosophy of Right comprises the forms taken by subjects or people in
the modern age; these include abstract right, personality, ownership, contract,
wrong, morality, family, civil society, the state, international relations, etc. The
subject matter of Capital comprises the forms taken by things in modern capitalist
society; these include value, exchange value, money, capital, proﬁt, rent, interest,
etc. We can make no assumption that one subject matter is more fundamental
or essential than the other. With Hegel we address the political or ideal forms of
modernity, with Marx its economic or material forms. Marx complements Hegel’s
analysis of the forms of right which constitute modern political life with his
analysis of the forms of value which constitute modern economic life. Read
together, they offer a more ‘complete’ image of modernity as a whole, one which
includes both the social forms of the subject and the social forms of the object,
than each offers in isolation from the other. Reading Hegel and Marx together,
we are forced to concede that the modern age cannot be reduced either to its ideal
or to its material aspects. An analysis which focuses on one rather than the other,
or which treats one as essential and the other as merely epiphenomenal, mistakes
the part for the whole and begs the question of how these aspects are related.

Each text also supplements the other by overcoming its actual or potential

limitations. In the case of the Philosophy of Right, what is overcome is the idealism
which ﬂows from identifying modernity exclusively with the ideal forms of legal
and political life. In the case of Capital what is overcome is the materialism which
flows from identifying modernity equally exclusively with the material forms
of economic life. Hegel is an idealist only to the extent that he focuses on the ideal
forms of subjectivity which mark the modern age at the expense of the material
forms taken by things. Marx is a materialist only to the extent that he focuses on
the material forms taken by the products of labour at the expense of the ideal forms
of the modern subject. Both Hegel’s idealism and Marx’s ‘materialism’ are wrong
only inasmuch as they are one-sided; in their own spheres of investigation, they
are equally valid. The tendencies to one-sidedness present in both Hegel and Marx
have been accentuated in the two traditions of social theory derived from them.
One, drawn from Hegel, concentrates on the forms of subjectivity which mark the
modern age and is inclined to use the concept of ‘modernity’ to convey existing
conditions. The other, drawn from Marx, concentrates on the commodiﬁcation

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of social life and tends to use the term ‘capitalism’ to do the same. These categories
have become theoretical icons of their respective one-sidedness. Rather than place
ourselves in either camp, that of Hegelianism or Marxism, the perspective which
starts from the unity of Hegel and Marx allows us to keep in mind both aspects of
modernity/capitalism.

Recognition of the unity of Hegel and Marx also allows us to keep in mind the

real, social dichotomies of the modern age: those of subject and object, person and
thing, freedom and determination, politics and economics, right and value. These
dichotomies are in the world and not merely the product of how we look at the
world, and they are not reducible to general considerations of an ahistorical type.
Reading Hegel and Marx together allows us to start from the substance of the social
order rather than to proceed atomistically and end up only in the juxtaposition of
these separate spheres.

Each sphere gives rise to its own illusions: illusions of free

will in the case of the political and illusions of determination in the case of the
economic. Each sphere also gives rise to its own abstract forms of domination:
in one case, law and the state; in the other, money and capital. Hegel’s concern
was with processes of personiﬁcation and the fetishism of the subject characteristic
of the former; Marx’s concern was with processes of reiﬁcation and the fetishism of
the commodity characteristic of the latter. When we draw these concerns together,
we are in a better position to see that the supreme achievement of the modern age
is to contain within itself and support these divisions and oppositions, and that
the greatest danger arises when political will and economic rationality are cast
adrift from one another. One manifestation, though not the only one, of this
separation is to be found in the phenomenon of totalitarianism and it is to this
that I now turn.

Notes

1 In the Science of Logic Hegel describes the process of becoming (Werden) of the notion

as the process in which the ‘idea’ posits itself as reality. Marx describes this logic as ‘the
money of the spirit’ and the ‘becoming of the notion’ as the reiﬁcation of value
relations in a closed and self-reproducing system.

2 The question of beginning, of where to start, was always a problem for Marx to which

he readily admitted. For instance, in the introduction to the Grundrisse Marx says that
the starting point must be ‘the general, abstract determinants which obtain in more
or less all forms of society’ – namely labour (108); he actually begins the Grundrisse
with a chapter on money (‘the root of all evil’); in the published version of Capital he
makes his starting point the commodity ‘since the difﬁculty lies not in comprehending
that money is a commodity but in discovering how, why and by what means a com-
modity becomes money’ (Capital 1. 92). Isaak Rubin argues that in Marx’s critique of
political economy we should not take ‘the concept of value as the starting point of the
investigation, but the concept of labour’ and that we should ‘deﬁne the concept of
labour in such a way that the concept of value also ﬂows from it’: that is, as abstract
labour (Rubin 1978: 109–39).

3 The opposing tendency within critical theory was to conceive of human rights, the

rule of law, morality, culture and/or love as belonging to entirely different logics from
that of the commodity – perhaps corrupted or distorted by commodiﬁcation but in

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themselves representing independent values. For example, Franz Neumann and Otto
Kirchheimer emphasised that aspect of ‘rational law’ which has to do with freedom
rather than with the commodity. They criticised the legalism of Social Democracy in
the 1920s and 1930s, and especially its reliance on a constitution which no longer had
real guarantees behind it, but warned of the dangers of acceding to disillusionment
over individual rights or to resignation in the face of their dissolution. They argued
that rational law was necessary for the predictability of commodity exchange and for
the legitimation of a competitive capitalist economy, and they explained the decline
of rational law in monopoly stages of capitalism as the result of the fact that the
market had become less important than planning and that capital had no further
interest in maintaining legal norms. However, looking to Weber’s analysis of rational
law as an antidote to these historical trends, they argued that if the three major
functions of formal-rational law in a modern society are to secure and conceal the
dominance of the rulers, to make economic processes calculable and to guarantee
the individual a minimum of security, equality and justice, the decline of the ﬁrst
two functions still leaves the third – the vinculum between right and freedom – intact.
According to this line of argument, the independence of law from the commodity
form derives partly from the formal qualities of law (‘generality’, ‘speciﬁcity’,
‘non-retroactivity’) and partly from the rights of subjective freedom it must to some
extent guarantee (freedom of speech, thought, movement, religion, association, etc.).
It might be interesting to note that Neumann and Kirchheimer held that even the
most positivist conceptions of formal rational law positivise rather than abolish
natural law, and that those who subsume natural law entirely to the sovereignty of
state (who, as they put it, subsume ratio to voluntas), actually destroy the idea of the
state and replace it with an irrational concept of force. They argued that under the
cover of the absolute sovereignty of the state, totalitarian theorists were actually
the most extreme critics of the state and that this was why they threw overboard
doctrines of the state, such as that of Hegelianism. If the so-called ‘totalitarian state’
was no more than an instrument used by some elements of civil society to terrorise the
rest, then in this context right and law really do become ‘mere forms’ (Neumann 1942:
69–73; 1986: 171–2).

4 Hegel writes: ‘Either we start from the substance of the ethical order or else we

proceed atomistically and build on the basis of single individuals. This second point
of view excludes mind because it leads only to a juxtaposition. Mind, however, is not
something single but is the unity of the single and the universal’ (PR §156

). Adorno

comments: ‘Nothing can be understood in isolation, everything only as part of the
whole, though it is of course also the case that the whole has life solely in its singular
moments’ (Adorno 1993).

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T O TA L I TA R I A N I S M A N D

T H E R AT I O N A L S TAT E

Arendt

Comprehension . . . does not mean denying the outrageous,
deducing the unprecedented from precedents, or explaining
phenomena by such analogies and generalities that the impact of
reality and the shock of experience are no longer felt. It means
rather examining and bearing consciously the burden that events
have placed upon us – neither denying their existence nor submit-
ting meekly to their weight as though everything that in fact
happened could not have happened otherwise. Comprehension,
in short, means the unpremeditated attentive facing up to, and
resisting of, reality – whatever it may be or might have been.

(OT xiv)

Writing under the shadow of totalitarianism, Hannah Arendt argued that nothing
could be more unjust or more dangerous than to put the blame for what happened
in the twentieth century on to any of the great nineteenth-century ‘rebels against
tradition’: Hegel, Marx or for that matter Nietzsche. She argued that totalitar-
ianism was illuminated by these thinkers whom she described as the ﬁrst to dare to
think ‘without the guidance of any authority whatsoever’. It was not in any sense
‘caused’ by them. In Between Past and Future Arendt wrote as follows:

The attempts of great thinkers after [and including] Hegel to break away
from patterns of thought which had ruled the West for more than two
thousand years may have foreshadowed this event [that of totalitarianism]
and can certainly help to illuminate it, but they did not cause it. The
event itself marks the division between the modern age . . . and the world
of the twentieth century which came into existence through the chain
of catastrophes touched off by the First World War. To hold the thinkers
of the modern age, especially the nineteenth century rebels against
tradition, responsible for the structure and conditions of the twentieth
century is even more dangerous than it is unjust. The implications
apparent in the actual event of totalitarian domination go far beyond the
most radical or most adventurous ideas of any of these thinkers. Their
greatness lay in the fact that they perceived their world as one invaded

100

by new problems and perplexities which our tradition of thought was
unable to cope with. . . . Neither the silence of the tradition nor the
reaction of thinkers against it in the nineteenth century can ever explain
what actually happened . . .

(BPF 26–7)

Arendt’s own judgement on the legacy of Hegel and Marx was equivocal. She wrote
of their reduction of ‘the most divergent values, contradictory thoughts and
conﬂicting authorities . . . into a unilinear and dialectically consistent thread of
historical continuity’, and her conclusion was that they were ‘still held by the
categorical framework of the great tradition’ against which they rebelled (BPF 28).
Her philosophical narrative went roughly along these lines: if the traditional form
of philosophy, originating in Plato, viewed the sphere of human affairs in terms of
‘darkness, confusion and deception’ and pursued the search for Truth, Beauty and
Justice beyond the mundane world of empirical need, to Hegel and Marx went the
credit for relocating philosophy in this world and for reconnecting philosophy with
the social and political life of human beings. She saw them as having rescued the
concept of freedom from ancient Greece, a treasure lost when humanity abandoned
the darkness of Plato’s cave to gaze at the sun but whose recovery was now vital to
save humanity from a godless world. According to Arendt, they were among the
ﬁrst to recognise that humanity had lived without the Absolute before and could
learn to do so again – perhaps through an immortality built of deeds which shine
in the public gaze and which reﬂect back an image of individual excellence sufﬁcient
to ward off the frailties of life. Before this politics of humanity could be retrieved,
however, Arendt argued that history made its fateful appearance. Having
rediscovered the lost treasure of ancient freedom, Hegel and Marx let it slip through
their ﬁngers: in one case hypostasising Freedom as the ‘Idea’ which advances over
the heads of human beings, in the other inverting freedom into a doctrine of
economic necessity (BPF 41 ff.). The problem with both Hegel and Marx, as Arendt
saw it, was that ultimately their critique of tradition did not escape the traditional
framework but replaced it with the idea of a single, continuous, unilinear and
progressive world history. To this totalising Story of Humankind, endowed with its
own march, rhythms, telos and laws, she counterposed a plurality of stories and their
interplay. Arendt held that in the shadow of Auschwitz and the Gulag, the ‘great
thinkers after Hegel’ could not be read in the same way again, but to hold them
individually or collectively responsible for what was done, sometimes in their name,
was an affront both to the ‘horrible originality’ of the totalitarian phenomenon and
to the contribution of these writers to its understanding. In fact, her analysis of the
origins of totalitarianism was more indebted to Hegel than she realised.

The difﬁculties of understanding

When Hannah Arendt subtitled her essay on Understanding and Politics ‘the
difﬁculties of understanding’, she was referring to the difﬁculties of understanding

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a political world in which the phenomenon of totalitarian terror was not just a
recent memory but a still existent reality.

Arendt was among the ﬁrst to argue

that totalitarianism signiﬁed a major rupture with all historical ideas of progress,
all feelings of optimism, all engraved images of Europe as a civilised community.
Her words still ring out:

not only are all our political concepts and deﬁnitions insufﬁcient for an
understanding of totalitarian phenomena but also all our categories of
thought and standards of judgement seem to explode in our hands the
instant we try to apply them.

(EU 302)

One of the questions she poses concerns the difficulty of understanding totali-
tarianism with the conventional tools of social theory. She resisted what she saw
as the complacency of a social science which decides in advance that its categories
are adequate to deal with events as original as Auschwitz and the Gulag and which
proceeds as if nothing has happened to disturb its peace of mind.

Arendt objected in particular to what she saw as the prevailing assumption

of rationality within social science and to its assumption that the phenomenon of
totalitarian terror can be understood through a means–ends calculus. She argued
that it was precisely this calculus that was missing in the case of totalitarianism.
In the conventional exercise of violence, it is used as a means – perhaps of retaining
power or intimidating enemies or forcing people to work. But where opposition
has already become impossible, where it makes no difference what I do for my
fate is already sealed, and where the exploitation of labour is at most only a
secondary beneﬁt subordinate to the main aim of extermination, the standards
of instrumental rationality make little sense. What was most striking about total-
itarian terror for Arendt is its lack of instrumental rationality. Violence ceases to
be a means to an end; it is deprived of that element of rational calculation which
governs its exercise even in the worst states; it becomes the very essence of rule
and ends up in a ‘frenzy of destruction’ without political, economic or military
utility.

The difﬁculty of understanding, as she saw it, was to comprehend whence

arises this subsumption of instrumental standards.

Arendt argued that this difﬁculty was most apparent in dealing with the camps

– the pivotal institution of totalitarian rule. She writes:

It is not only the non-utilitarian character of the camps themselves –
the senselessness of ‘punishing’ completely innocent people, the failure
to keep them in a condition so that proﬁtable work might be extorted
from them, the superfluousness of frightening a completely subdued
population – which gives them their distinctive and disturbing qualities,
but their anti-utilitarian function, the fact that not even the supreme
emergencies of military activities were allowed to interfere with these
‘demographic policies’. It was as though the Nazis were convinced that

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102

it was of greater importance to run extermination factories than to win
the war.

(EU 233)

If the event is not governed by utilitarian criteria of power and proﬁt, then any
attempt on the part of the social sciences to situate totalitarian terror alongide
other forms of organised violence, as something that has a deﬁnite purpose and
beneﬁts the ruler ‘in the same way as an ordinary burglary beneﬁts the burglar’,
necessarily falls short. Arendt wrote of the Nazi death camps in precisely this vein:

The gas chambers did not beneﬁt anybody. The deportations themselves,
during a period of acute shortage of rolling stock, the establishment
of costly factories, the manpower employed and badly needed for the
war effort, the general demoralising effect on the German military
forces as well as on the population in the occupied territories – all this
interfered disastrously with the war in the East, as the military authori-
ties as well as Nazi ofﬁcials . . . pointed out repeatedly . . . And the ofﬁce
of Himmler issued one order after another, warning the military
commanders . . . that no economic or military considerations were to
interfere with the extermination programme.

(EU 236)

The difﬁculty of understanding for Arendt was to resist the temptation to submerge
the unfamiliar in a welter of familiarities, to reduce the unknown to something
which is known, to recognise that in this case ‘all parallels create confusion and
distract attention from what is essential’ (OT 444). In short, Arendt argued that
we are dealing here with something new that does not fit within the rubric of
instrumental rationality.

This was one side of Arendt’s argument. The other was directed against the

opposite tendency: to declare that totalitarian terror is ineffable, incompre-
hensible, beyond cognition. Arendt argued that because we can ﬁnd no rational
explanation for such phenomena, we are tempted to declare them ‘beyond human
understanding’. In reference to the camps she writes:

If we assume that most of our actions are of a utilitarian nature and that
our evil deeds spring from some ‘exaggeration’ of self-interest, then we
are forced to conclude that this particular institution of totalitarianism
is beyond human understanding.

(EU 233)

Her contention is that we have to drop any assumption of instrumental or
economic rationality if we are to begin to address the ‘peculiar unreality and
lack of credibility’ of existence in the camps. The difﬁculty of understanding was
evident among survivors who returned to the world of the living only to find

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themselves assailed by doubts with regard to their own truthfulness, as though
they had ‘mistaken a nightmare for reality’. It was faced by those of us with no
experience of the camps in believing what we were told: ‘What common sense
and “normal people” refuse to believe is that everything is possible. We attempt
to understand elements in present or recollected experience that simply surpass
our powers of understanding.’ It was faced by eyewitnesses in reporting what they
had seen: ‘they cannot supply anything more than a series of remembered
occurrences that must seem just as incredible to those who relate them as to their
audience.’ Finally, perhaps, it was faced by social scientists like herself in making
use of testimonies and eyewitness accounts for the purposes of political thought
(OT 439–41). Difﬁculty is compounded upon difﬁculty. How can we understand
a social process based on the mass manufacture of corpses? Why on earth did
human beings construct this lunatic micro-world in which ‘punishment is meted
out without connection with crime . . . exploitation is practised without proﬁt,
and . . . work is performed without product’? (OT 443) Why did human beings
fabricate these spaces in which ‘the whole of life was thoroughly and systematically
organised with a view to the greatest possible torment’? (OT 445). The only
categories which seem to make sense of this world are those of senselessness,
madness, unreality, insanity, lunacy.

In the face of such difﬁculties Arendt came to the defence of understanding

itself. The concern she expresses is that the source from which answers should
come – our quest for understanding itself – might dry up. The crux of her argument
is that to give up on the need to understand is to surrender to the elements of
totalitarian thinking which survive within our own society. Since totalitarianism
suppresses the activity of understanding, the activity of understanding becomes
itself a form of resistance. She characterises understanding as ‘a profoundly
human activity . . . a speciﬁcally human way of being alive; for every single person
needs to be reconciled to a world into which he was born a stranger and in which,
to the extent of his distinct uniqueness, he always remains a stranger (EU 308).
Understanding is the opposite of indoctrination: its task is not to offer a premature
sense of completion nor to engage in ‘dialectical acrobatics’ based on the super-
stition that something good might come from evil. Understanding is a political
activity: it can only be done in concert with others, it must take into consideration
the viewpoints of others, it must be prepared to share its conclusions in ‘open and
uncoerced discussion with others’, it must be prepared like Penelope’s weaving to
‘undo every morning what it has ﬁnished the night before’ (LM 1. 88). It should
take as much pleasure, as Gotthold Lessing put it, in ‘making clouds’ as it does in
clearing them (MDT 26).

Nor is the activity of understanding opposed to political action. To those who

say that one cannot ﬁght totalitarianism without understanding it, Arendt replies;
‘Fortunately this is not true; if it were, our case would be hopeless . . . We cannot
delay our fight against totalitarianism until we have “understood” it, because
we do not and cannot expect to understand it deﬁnitively as long as it has not
deﬁnitively been defeated’ (EU 307–9). Understanding is not opposed to moral

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judgement. To understand totalitarian terror does not entail forgiving the perpe-
trators on the basis of the principle that ‘tout comprendre, c’est tout pardonner’
nor normalising their crimes on the basis of the argument that in everyone of us
there lurks a monster. We must not ignore what Arendt called ‘the abyss that lies
between the acts of the perpetrator and the potentiality of what others might have
done’ (Arendt 1994a: 278).

This commitment both to the politics of understand-

ing and to the understanding of politics unites Arendt firmly to the tradition
initiated by Hegel.

The idea of totalitarianism

How are we to begin to understand such events as Auschwitz and the Gulag?
For Arendt, the key concept was that of ‘totalitarianism’. This was by no means
a neutral starting point. Indeed, few concepts in political theory have come under
such sustained criticism. Let me offer one example. In his memoir At the Mind’s
Limits: Contemplations by a Survivor on Auschwitz and Its Realities Jean Améry argued
that the concept of ‘totalitarianism’ was ill conceived because, as he put it (Améry
1989: 180), ‘Stalin and Hitler were different in principle – the one still symbolises
an idea of man, the other hated the word “humanity” like the pious man hates
sin’:

I hear . . . it said that not Hitler embodied torture but rather something
unclear, ‘totalitarianism’. I hear especially the example of Communism
being shouted at me. And didn’t I myself just say that in the Soviet Union
torture was practised for 34 years? And did not already Arthur Koestler
. . . ? Oh yes, I know, I know.

(Améry 1989: 179)

Rejection of the term ‘totalitarianism’ on the ground that it confuses two different
systems of rule was common among Marxists who refused to accept that the Soviet
Union was ever or could ever be ‘like’ Nazi Germany.

Under the register of

what Claude Lefort has called ‘reformed totalitarianism’, they maintained that
Communism holds universal values, only denounces democracy because it is
formal, endeavours at least in theory to establish a higher form of democracy,
justiﬁes violence only if it serves as counter-violence, and has as its aim the good
of humanity. They held that Nazism by contrast gloriﬁes nationalist passions, seeks
only to realise the particular destiny of the Volk, attributes absolute superiority to
a pure race summoned to subjugate or eliminate inferior races, puts antisemitism
and other forms of racism at the centre of its political programme and treats
violence as the highest expression of life. Communism refers to laws of history;
whereas Nazism refers only to mystical laws of nature. Communism is a political
order based on the overcoming of capitalist exploitation; Nazism is an ethnic order
in which capital profits from the slave labour of the subjugated ‘races’. Such
objections to the concept of totalitarianism are not insignificant, but they are

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ideologically driven and, in their failure to measure the difference between
ideology and practice, remain on the surface of political life. No serious historian
would deny, for example, that Stalinist terror in the 1930s vastly exceeded the
scope of violence imposed by any instrumental necessity. What is as important
as the manifest content of these rival ideologies is the comparable function they
performed: in both cases, for instance, the dominant ideas were tied to the
existence of a party-movement whose organisation and unity represented the
untouchable ground on which the ‘power of discourse and the discourse of power’
became indistinguishable (Lefort 1998: 3–4). In this political context, the
languages of class and race functioned in analogous ways. In any event, there is
nothing wrong in principle in looking for the common features which unite these
coeval regimes.

Améry’s second reason for distrusting the concept of totalitarianism is that it

replaces the ‘event’ as experienced by the victim with what he calls a ‘codiﬁed
abstraction’. Améry writes that only in rare moments of life do we truly stand ‘face
to face with the Event and with it reality’ and that one such moment occurred
to him when he stood face to face with his torturers:

Gestapo men in leather coats, pistol pointed at their victim . . . then,
almost amazingly, it dawns on one that the fellows not only have leather
coats and pistols, but also faces . . . like anyone else’s. Plain, ordinary
faces . . . And the enormous perception . . . that destroys all abstractive
imagination, makes clear to us how the plain, ordinary faces ﬁnally become
Gestapo faces after all.

(Améry 1989: 175)

Améry contrasts this unmediated experience of human cruelty with abstract
concepts like that of ‘totalitarianism’:

National Socialism . . . was stamped less with the seal of a hardly
definable ‘totalitarianism’ than with that of sadism. Sadism as radical
negation of the other, as the denial of the social principle as well as the
reality principle. The sadist wants to nullify this world, and by negating
his fellow man, who also in an entirely specific sense is ‘hell’ for him,
he wants to realise his own total sovereignty . . . I have experienced the
ineffable . . . thinking is almost nothing else but a great astonishment.

(Améry 1989: 184–7)

Améry is saying that the use of a ‘codiﬁed abstraction’ like totalitarianism destroys
the sense of astonishment which is the true source of thinking. It is true that
experience of the particular must drive our use of universals, but we cannot escape
from universals as such. ‘Sadism’ and ‘torture’ are themselves universalising
concepts which link a particular experience with a multiplicity of others. No doubt
they capture for Améry the experience he underwent, but they do not reveal what

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is distinctive and original about totalitarian sadism and torture nor do they explain
why sadism and torture became principles of political rule.

A concept can only be understood through its uses. To assess Arendt’s use of the

concept of ‘totalitarianism’ we have to distinguish between the use she put it to
and its more conventional uses in political science. According to her own account,
Arendt uses the term ‘totalitarianism’ to face up to the ‘previously unthinkable
reality’ actualised in the camps. It makes sense not so much as a ﬁxed and top-down
type of political system that can be deﬁned according to certain speciﬁable criteria,
but rather in terms of the imaginary identity (found notably in Gentile) of total
domination and total freedom. The crucial point is not to fall for the illusion that
this conceptual hubris should be actualised but to see the consequences of its radical
incompletion. It is perhaps not impossible in theory that the self-consciousness of
the individual can be fully identiﬁed with the state, so that nothing is left over and
there is no supplement. But the import of Arendt’s argument is that it is not the
success of totalitarianism that led to ‘escalating orgies of destruction’, but rather its
repeated failure.

It is this thought that makes sense of Arendt’s perceptive statement

that ‘until now the totalitarian belief that everything is possible seems to have
proved only that everything can be destroyed’ (OT 459). We are not speaking here
of a structure of total domination, but of a movement which ﬁnds in the fact of
something determinate a limit on its freedom that must therefore by destroyed. The
substance of Arendt’s use of the term ‘totalitarianism’ follows closely on the heels
of Hegel’s earlier insight.

Arendt was not, of course, the ﬁrst or only political thinker to use the concept

of totalitarianism after Gentile. In the 1930s it was used by number of writers
to compare the terror practised in Stalinist Russia with that practised in Nazi
Germany and there were some who believed that the whole world might be going
down this path. After the war it was used by political philosophers to indict both
Communism and Nazism and more broadly the whole tradition of utopian social
engineering whose modern origins were traced back to Plato, Hegel and Marx.
It was taken up by political scientists to denote illiberal political systems which
annihilate all boundaries between the state, civil society and individual person-
ality. During the cold war it was used in a blatantly ideological sense to indict
twentieth-century Marxism and to contrast ‘authoritarian’ regimes on the right
with ‘totalitarian’ regimes on the left on the ground that only the former were
open to democratisation. The key to all these conventional uses of the concept is
that it leaves liberalism intact as the innocent victim of external forces. No intrinsic
relation between liberalism and the origins of totalitarianism is permitted.

Given the career of this concept, it may not be surprising that many critical

theorists have wanted no part of it, but Arendt uses it precisely to reassess the role
of liberalism in the origins of totalitarianism. She counts the failure of liberalism
to live up to its own ideals and its inability to resist the rise of totalitarian
movements to be ‘among the historical facts of our century’ (EU 282). For
example, to former Communists who wanted to return after the war to the
‘democratic way of life’, Arendt declared with some contempt that it was ‘the same

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world against whose complacency, injustice and hypocrisy these same men once
raised a radical protest . . . where the elements which eventually crystallised . . .
into totalitarianism are still to be found’ (EU 281). Arendt warns of the ‘great
temptation to explain away the intrinsically incredible by means of liberal
rationalisations’ and comments that in each one of us ‘there lurks such a liberal,
wheedling us with the voice of common sense’ (OT 439–40). The logic of her
argument is that when liberalism presents totalitarianism as the Other of itself, it
understands neither totalitarianism nor itself, for although totalitarianism reaches
fruition only at limited times and in particular places, it has deep roots in the
modern system of right. The spirit of Hegel permeates Arendt’s argument. It points
in two directions: ﬁrst, the connection of totalitarianism with the system of right
is immanent, intrinsic, not merely external; second, totalitarianism is inescapably
original and cannot be understood as the ‘culmination’ or ‘logical extension’ or
‘ﬁnal result’ of any preceding social process or intellectual tradition. Again, we
need to keep both sides in mind. She writes:

An event belongs to the past, marks an end, insofar as elements with
their origins in the past are gathered in its sudden crystallisation; but
an event belongs to the future, marks a beginning, insofar as this
crystallisation itself can never be deduced from its own elements, but is
caused invariably by some factor which lies in the realm of human
freedom.

(EU 326)

What makes totalitarianism an event is the unexpected landscape of possibilities
which transcends the ‘sum total of all willed intentions and the signiﬁcance of all
origins’ (EU 320). It is one thing to detect elements of the system of right in the
origins of totalitarianism, be they reason, science, technology, bureaucracy, law,
the state, the police, instrumental rationality, etc. It is another to tar them all with
an overstretched brush of totalising thought. In other words, we must resist the
tendency to totalise totalitarianism.

The critique of instrumental rationality

We may elucidate Arendt’s analysis of totalitarianism by comparing it with
that put forward by the sociologist, Zygmunt Bauman, in his Modernity and the
Holocaust. Bauman’s central argument is that the Holocaust should not be seen as
a failure of modernity but as its product. The most ‘shocking’ of the conclusions
he reaches concerns what he calls ‘the rationality of evil’ and the ‘evil of
rationality’. The idea of instrumental rationality dominates his understanding both
of the conception and execution of the Holocaust. In terms of conception, Bauman
portrays the dominance of instrumental rationality through the metaphor of
a ‘garden culture’ in which the extermination of weeds is the destructive aspect
of the gardener’s productive vision. A gardener has an image of how he wants his

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garden to be: well ordered and in conformity with his own dreams of beauty and
serenity. He likes certain plants and breeds them to fit in with his plan; he
designates others as weeds and poisons or incinerates them. The gardener sees
nature instrumentally, in terms of how it affects him and may be affected by him,
rather than as a world endowed with an intrinsic value of which he is guardian.
In modernity, human beings too are stripped of intrinsic value: some are deﬁned
as weeds, others are selectively bred. Genocide is an extreme kind of social weeding
and Hitler and Stalin but ‘the most consistent, uninhibited expressions of the spirit
of modernity’ (Bauman 1990: 93).

Bauman also holds instrumental rationality responsible for the execution of

the Holocaust. He argues that the Final Solution was accomplished through the
normal functioning of the bureaucracy and that even the political master, Hitler,
found himself in the position of the dilettante next to the trained expert and
ofﬁcial.

He depicts the choice of extermination as ‘an effect of the earnest effort

to ﬁnd rational solutions to successive “problems” ’ and maintains that at no stage
did it clash with the ‘rational pursuit of efﬁcient, optimal goal-implementation’.
He argues that it ‘arose out of a genuinely rational concern, and it was generated
by bureaucracy true to its form and purpose’ (Bauman 1990: 16), and he sees in
Max Weber’s exposition of rational bureaucracy ‘no mechanism . . . capable of
excluding the possibility of Nazi excesses’ (1990: 10 my emphases throughout).
Auschwitz appears as a product of ‘routine bureaucratic procedures’ generated by
bureaucracy ‘true to its form and purpose’ (1990: 17). For Bauman, the cardinal
sin of instrumental rationality is to put a narrowly conceived self-interest on the
one hand and the imperatives of technical efficiency on the other before all
considerations of morality. In a vivid use of phrases, he describes the bureaucracy
as a machine for the ‘silencing of morality’ or as a ‘moral sleeping pill’ (1990: 22).

Rationality is the villain of the piece. It explains the behaviour of those who

conceived the genocide, those who organised it, those who perpetrated it, those
who stood indifferently by, and even the behaviour of the victims. When Jewish
administrators and police in the Ghettos were enticed to co-operate with the Nazis
in the deportation of Jews, Bauman argues that the Nazis merely had to rely on
the Jews to act rationally. In the world of Auschwitz, ‘obedience was rational;
rationality was obedience . . . Rational people will go quietly, meekly, joyously
into a gas chamber, if only they are allowed to believe it is a bathroom’ (Bauman
1990: 203). The rational individual would play his part in gassing millions if it
meant holding on to a good job. He would look the other way if intervention were
not in his job description. Most scientists are no different: they would be prepared
in exchange for research grants ‘to make do with the sudden disappearance of some
of their colleagues with the wrong shape of nose or biographical entry’ (Bauman
1990: 109).

What makes this theory plausible is that it expresses a wider hostility to reason,

legal-rational administration and science, but it is this very hostility that is also
its undoing. For Arendt, the distinguishing mark of the camps was their own lack
of or even hostility to instrumental rationality. Nothing was to get in the way of

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the destruction. If norms of instrumental rationality were considered, then they
would have acted as an inhibition on what was done. Arendt refers to the ‘so-
called totalitarian state’ because it is not properly speaking a state at all and she
offers an altogether more equivocal picture of the relation of totalitarian rule to
the ‘rational architectonic’ of the modern state. For example, she writes:

Totalitarian rule exploded the very alternative on which all deﬁnitions
of the essence of governments have been based in political philosophy
. . . that is the alternative between lawful and lawless government . . .
totalitarian rule confronts us with a totally different kind of government.

(OT 462)

Totalitarian rule defies all natural right and positive law but it is not lawless.
It appeals to a kind of natural law, the ‘laws’ of Nature and History that were
personiﬁed in the Leader whose word was law. It objects to ‘petty legality’ in order
to establish the rule of justice on earth – something which, Arendt adds, ‘the
legality of positive law admittedly can never attain’ (OT 463). It denies all ﬁxed
standards of right on the premise that nothing can be accepted as it is. It identiﬁes
its own rule with historical and natural necessity and resists any framework of
stability which might inhibit its mobility of action. Even its administration is based
not so much on rational bureaucracy, but on the intermeshing of multiple state
and party institutions and the proliferation of police apparatuses of whom all were
‘equal with respect to each other and no one belonging to one group owed
obedience to a superior ofﬁcer of another’ (EJ 71).

To be sure, elements of legal-

rational authority existed in the Third Reich: people were sometimes numbered,
processed by bureaucratic-type machines, placed under systems of surveillance;
there were papers, form filling, official stamps and files of information kept on
individuals. But there was no bureaucratic hierarchy of command or system of rules
that would be recognisable to a student of Hegel or Weber. Ofﬁcials who were
technically in positions of authority could be denounced and replaced by their
juniors; one apparatus was liable to be liquidated in favour of another; the stability
and hierarchy of genuine bureaucracy were absent. What we ﬁnd is a simulacrum
of bureaucratic efﬁciency, not to be confused with the real thing.

Neither can the Holocaust easily be characterised in terms of the rationalisation

of murder. The Holocaust used methods of its time, including modern manage-
ment, but the industrial image of Auschwitz should not be allowed to overtake
our understanding of the Holocaust as a whole. The Nazis devised two basic
strategies for the annihilation of Jews: mass shooting and mass gassing. Special
duty troops of the SS’s Security Service and the security police of the
Einsatzgruppen were assigned to each of the German armies invading the Soviet
Union and given the task, alongside various other ‘military’ and ‘police’ forces, of
rounding up Jews and killing them through crude and primitive methods of
shooting. These methods were the antithesis of Bauman’s image of clean and
dispassionate white-coated technicians introducing gas into gas-chambers. The

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killers were confronted with the faces as well as blood of the victims. It is estimated
that some two million Jews were murdered in this way. To murder the rest of
European Jewry the Nazis built some camps with large-scale gassing and sometimes
crematorium facilities (Auschwitz, Belzec, Chelmo, Majdanek, Sobibor and
Treblinka) and other camps designed to work and starve their inmates to death.
The technology used here was often barely more sophisticated than the brute
violence of the Einsatzgruppen and it was only when death camps were combined
with labour camps (such as at Auschwitz and Majdanek) that any significant
architectural relics of industrial killing were left behind. All in all about three and
a half million Jews were murdered in this way. A further half a million Jews or so
were killed through hunger, disease and exhaustion in the ghettos or as victims of
random terror and reprisal. To understand the Holocaust, we must be wary of a
synecdoche which substitutes the industrial image of Auschwitz for the whole.

The relation between rationality and ‘morality’ is not contained in the notion

that ‘morality’ was the suppressed party in the conception and execution of the
Holocaust. Arendt’s own answer is not without its own ambiguities. She writes
that totalitarian terror indicated the ‘collapse of all existing moral standards’ and
doubtless its exercise was rendered possible by the skilful use of ‘moral sleeping
pills’ made available by modern technology. But it was also due to the skilful
use of moral imperatives to overcome the natural resistance of ‘ordinary men’
to slaughtering entirely innocent human beings. Following Hegel, we should say
that the ‘moral point of view’ was an integral aspect of the whole grisly business.
The picture of modernity as the triumph of instrumental rationality over the moral
point of view offers a one-sided view of modernity itself. Morality is one sphere of
right within the system of right as a whole, and even in Weber’s conception of
legal-rational authority, officials are held morally responsible for their actions.
Indeed part of the immense power of bureaucracy is based on a responsibility for
decision-making and rule interpretation which is distributed throughout the
hierarchy. The process of following a rule is always mediated through consciousness
and rules are nothing without interpretation: ‘a system of rationally debatable
“reasons” stands behind every act of bureaucratic administration, that is, either
subsumption under norms or a weighing of ends and means’ (Weber 1991: 219).
Rational authority is not the same as brute force. People choose to defer to
authority. To be sure, their choices are never completely free; they are made within
the limits of what is possible and what alternatives are available; yet rarely are
those constraints so rigid that there is no choice and rarely is the structure so
dominating as to remove all moral agency.

If the totalitarian form of organisation had been rigidly bureaucratic, it

would not have annulled all idea of morality. But it was not rigidly bureaucratic
in any sense that Hegel or Weber would have recognised. It is at least arguable
that the actual forms of administration that were involved in the exercise
of totalitarian terror augmented the moral point of view. For example, the so-
called ‘leader principle’ worked through the will of every member to know and
act in accordance with the will of the leader and take responsibility for all the

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decisions taken in their ﬁeld of operation. Every holder of position was respon-
sible for all the activities of his subordinates, even when they disobeyed or
failed to execute commands, and wide latitude was given to sub-leaders for the
execution of policies. It took zeal and creativity to grasp the will of the Führer far
in excess of the old-fashioned plodding bureaucrat. Moral incentives were given
to ‘ordinary men’ to become ‘extraordinary’ by committing vile deeds. These
perpetrators were not generally forced into the formations which implemented
the Holocaust. Adolf Eichmann, for example, was keen to win promotion on his
particular ‘front line’ and the members of the murderous police battalions (the
Einsatzgruppen) were given the opportunity to withdraw from the killing actions
(Browning 1993).

One of the propositions Arendt puts forward is that the exercise of totalitarian

terror marked the emergence of a new type of bourgeois: no longer the Kantian
citizen who combines public virtue with moral responsibility, but the ‘mass man’
who renounces his claim to personality, does his duty at the expense of his own
inclinations, and kills without passion or enmity – simply as a job and in the service
of the state. The force of Arendt’s argument, however, is that the perpetrators
were not simply ‘cogs in a machine’ but only conceived of themselves as if they
were and as if they made no moral choices. She wants to explode this illusion
of ‘thingness’. For example, she quotes Adolf Eichmann as having declared at
his trial that he lived his whole life prior to his assumption of responsibility for the
Final Solution according to a Kantian definition of moral duty, but that from
the moment he was charged with carrying out the Final Solution he knowingly
ceased to live according to Kantian principles and instead put blind obedience to
the Leader before any moral concerns. This was Eichmann’s version of events,
or the version he presented in court, but Arendt’s comment on this presentation
of self is highly pertinent. It is that Eichmann did not so much abandon the
Kantian moral imperative when he acted in line with the Leader principle, as
adapt it to an absolute morality which declares that duty is duty, law is law, and
Jews must perish – with no exceptions, not even for his own friends.

Arendt writes that the rapid adaptation of ordinary people to Nazi terror before

the war and then the equally rapid adaptation of former Nazis to the democratic
way of life after the war, may serve to indicate that what we call ‘morality’ is no
more than ‘a set of mores, customs and manners which could be exchanged for
another set with hardly more trouble than it would take to change the table manners
of an individual or a people’ (LM 5). Yet she also recognises that some individuals
made reﬂective judgements on what is right and wrong quite independently of
established norms. She cites the case of Anton Schmidt, the German soldier
executed in 1942 for helping Jews, and comments how utterly different everything
would have been ‘if only more such stories could have been told’ (EJ 231).

The faculty of judgement, for Arendt, is a human faculty which in conditions

of terror most people will surrender ‘but some people will not’ (EJ 233), and she ﬁnds
a certain cause for hope in the fact that the conscience of the individual can still
ﬁnd another voice than that of society – even when all around them conform.

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In a ‘post-traditional age’ there are no absolute moral standards but this is not to
say that there are no moral standards at all, or that they can all be changed at will,
or that the border police of a particular society can always bar the entry of universal
moral standards from without. The idea that we do not accept anything as right
which we do not ourselves judge to be right according to universal criteria, is as
much a product of our age as is that of instrumental rationality. The difﬁculty,
then, is to recognise the ambiguities of ‘morality’. The conclusion I think we
should draw from her work is that the connections that tie totalitarian terror
to ‘modernity’ do not depend simply on the suppression of the moral point of view
by the forces of instrumental rationality. The demonisation of ‘rationality’ on
one side and the idealisation of a pre-social ‘morality’ on the other do not help
us understand this event. Rather we need to recognise, in the spirit of Hegel, that
morality itself is implicated.

Spiritless radicalism

Arendt describes totalitarian terror as an organised attempt to ‘eradicate the
concept of the human being’ (A&J: 69), to ‘obliterate the idea of humanity (OT
459) and to introduce into politics the principle of ‘all or nothing – all, and that
is an undetermined inﬁnity of forms of human living together, or nothing, for a
victory of the concentration camp system would mean the same inexorable doom
for human beings as the use of the hydrogen bomb would mean the doom of the
human race’ (OT 443). She describes the camps as an attempt to eliminate ‘under
scientiﬁcally controlled conditions spontaneity itself as an expression of human
behaviour’, to transform the human personality into a mere ‘thing’, to treat
all human beings as ‘equally superﬂuous’, to destroy all sign of ‘human plurality’,
etc. (OT 438–9). The camps were the laboratories in which the experiment
of total domination, impossible to accomplish under normal circumstances, could
be actualised. The process of admitting people into the camps was a process of
stripping people of any notion of personality or possession of right: first rights
of political participation, then rights of property, then even rights of survival.
The camps were the visible proof that human beings could be turned into inani-
mate and expendable things and that murder could be made as impersonal as
the squashing of a gnat. Their achievement, as Arendt saw it, lay not in making
anything, but in ‘robbing man of his nature . . . under the pretext of changing it’
(OT 443). If the idea of personality, as Hegel put it, is the achievement of the
modern age, then totalitarian terror was the attempt to undo it.

If it is the case, as Arendt argued, that the totalitarian imagination has as its

primary aim the destruction of the idea of ‘humanity’, the question this raises is
why did the idea of humanity cause offence? What is it that the totalitarian
consciousness objected to? Why does the idea of humanity have to be destroyed?
To address this question, Arendt draws on Nietzsche’s depiction of destructive
nihilism. In The Will to Power he writes: ‘What does nihilism mean? That the
highest values devaluate themselves. The aim is lacking; “why?” ﬁnds no answer’

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(Nietzsche 1969: 9). In a passage from Untimely Meditations Nietzsche captures
this experience thus:

Now how does the philosopher see the culture of our time? Naturally
quite differently than those philosophy professors who are satisfied
with their state. When he thinks of the universal haste and the
increasing speed with which things are falling, of the cessation of all
contemplativeness and simplicity, it almost seems to him as if he were
seeing the symptoms of a total extermination and uprooting of culture.
The waters of religion are ebbing and they are leaving behind swamps
or ponds; the nations are again separating from one another in the
most hostile manner and they are trying to rip each other to shreds.
The sciences, without any measure and pursued in the blindest spirit of
laisser faire, are breaking apart and dissolving everything which is ﬁrmly
believed; the ediﬁed classes and states are being swept along by a money
economy which is enormously contemptible. Never was the world more
a world, never was it poorer in love and good. The educated classes are
no longer lighthouses or sanctuaries in the midst of all this turbulent
secularisation; they themselves become more turbulent by the day, more
thoughtless and loveless. Everything, contemporary art and science
included, serves the coming barbarism.

(Nietzsche 1983: 148–9)

Nietzsche prefigured the fin-de-siècle mood of irredeemable decline when the
values and beliefs that were taken as the highest manifestation of the spirit of the
West lost their validity and when this loss of values bred a destructive and spiritless
radicalism, full of hostility to culture and images of destruction. The barbarism
Nietzsche anticipated, however, was but a pale image of the barbarism to come.

What Arendt seeks to demonstrate is that the rise of European nihilism was an

expression of justiﬁed disgust with the fake world of bourgeois values, and if these
values remain as fake as they were, then the ground is still fallow. Arendt argued
that nihilism was the spectre haunting Europe after the Great War because all
thinking beings shared a sense of revulsion at the gulf between the values which
society espoused and the mechanised murder which the ‘front generation’ had
experienced in the war:

simply to brand as outbursts of nihilism this violent dissatisfaction with
the pre-war age . . . is to overlook how justiﬁed disgust can be in a society
wholly permeated with the ideological outlook and moral standards of
the bourgeoisie.

(OT 328)

It was this sense of justiﬁed disgust with all existing standards and with every power
that be that was transmuted into the hope that the whole culture and texture

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of life might go down in ‘storms of steel’ (Ernst Junger): ‘destruction without
mitigation, chaos and ruin as such assumed the dignity of supreme values’ (OT
330). War appeared to be the progenitor of the new world, a means of chastisement
and purification in a corrupt age (Thomas Mann), the great equaliser in class-
ridden societies (Lenin), the arena in which selflessness obliterates bourgeois
egoism (Bakunin), the site of the doomed man with no personal interest, no affairs,
no sentiments, attachments, property, not even a name of his own (Nechaev), the
ruined ground on which philosophies of action enunciate the dream of ordinary
men that they might escape from society and do something quite extraordinary,
something heroic or criminal, something undetermined. War fed the ‘anti-
humanist, anti-liberal, anti-individualist and anti-cultural instincts’ of the front
generation. It elevated violence, power and cruelty as the ‘supreme capacities of
humankind’, and it provoked many of the front generation to become ‘completely
absorbed by their desire to see the ruin of this whole world of fake security, fake
culture and fake life’ (OT 330).

Arendt maintained that the critique of parliamentary democracy developed

both by ‘left’ and ‘right’ revolutionaries (Lenin on one side and Carl Schmitt on
the other) was based on the fact that the practices and institutions of represen-
tative government knew nothing of ‘action and participation’ and left the ‘masses’
unintegrated in political forms of organisation. Behind all the conventional
political parties she discerned ‘slumbering majorities’ who played no active
part in public life. The enforced marginality of the masses under representative
systems of government caused little problem as long as they remained invisible
and as long as the focus stayed on the representatives themselves. At a time of
social and political crisis, however, the underlying deﬁciencies of representative
government came to the surface and the masses emerged from obscurity not as a
revolutionary force for freedom and justice, but rather as ‘one great unorganised,
structureless mass of furious individuals’ (OT 315). At least one of the reasons why
totalitarian movements were the beneficiaries of the crisis of parliamentary
democracy was that the ground was prepared for them by a representative system
which left people atomised, malleable, at best politically indifferent, or worse,
brimming with resentment at the invisibility of their sufferings. Totalitarian
movements channelled this contempt for representative institutions into a
doctrine of ‘movements’ which obscured the very distinction between inner-
party elites and the people with whom they claimed identity. What this meant
in practice was that all forms of representation were suppressed except that
of the totalitarian movement itself: representation was not overcome, it was
monopolised.

Arendt argued that the key source of this reactive politics lay in the double

standards and hypocrisy of the bourgeoisie, who wore the mask of humanity the
better to conceal their actual appetite for power:

Since the bourgeoisie claimed to be the guardian of Western traditions
and confounded all moral issues by parading publicly virtues which it not

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only did not possess in private and business life, but actually held in
contempt, it seemed revolutionary to admit cruelty, disregard of human
values, and general amorality, because this at least destroyed the duplicity
upon which the existing society seemed to rest.

(OT 334)

In the twilight of double moral standards, it seemed radical to flaunt extreme
attitudes: ‘to wear publicly the mask of cruelty if everybody . . . pretended to be
gentle’. Arendt cited the case of Celine’s Bagatelles pour un Massacre in which
he proposed the massacre of all Jews, and the welcome which André Gide gave
to it, ‘not of course because he wanted to kill the Jews . . . but because he rejoiced
in the blunt admission of such a desire and in the fascinating contradiction
between Celine’s bluntness and the hypocritical politeness which surrounded the
Jewish question in all respectable quarters’ (OT 335). This radicalism attacked
the separation of public and private life in the name of the wholeness of man.
It exposed the false trust on which representative institutions were based,
but only to promote a philosophy of universal distrust. It exposed the untruths
of the existing system of right only to repudiate the very distinction between
truth and falsehood and to declare its contempt for facts as such. It expressed
contempt for political parties only to grant a political monopoly to the ‘movement’
itself.

The further argument we ﬁnd in Arendt is that such blunt admission of desire

as we ﬁnd in this ‘spiritless radicalism’ was often welcome to a bourgeoisie tired
of managing the tension between words and deeds and prepared to remove
their masks and reveal a more naked brutality. The key precipitant of this new
celebration of violence was imperialism: the form in which she argued the political
rule of the bourgeoisie was ﬁnally consolidated and expansion for expansion’s sake
became for the ﬁrst time the political credo of the age:

Expansion as a permanent and supreme aim of politics is the central
political idea of imperialism . . . it is an entirely new concept in the
long history of political thought and action . . . this concept is not really
political at all, but has its origin in the realm of business speculation.

(OT 125)

Drawing on the writings of Rosa Luxemburg, Arendt held that the imperialist
principle of politics mirrored the bourgeois principle of economics: unlimited
accumulation of power mirrored the unlimited accumulation of capital. What was
new was not, of course, violence as such but the fact that violence was becoming
the very aim of the body politic and was incapable of rest until there was ‘nothing
left to violate’ (OT 137). It was in the age of imperialism that Arendt saw the
‘will to power’ becoming emancipated from all traditional restraints, moral
and political, and the ground laid for a power which ‘left to itself can achieve
nothing but more power’. Nihilism in this sense became the practical spirit of the
bourgeois age.

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Arendt recognised that the imperialist ambition of power for power’s sake came

up against the obstacles, such as those imposed by nation-states at home and
national movements in the colonies. However, these opponents of imperialist
expansion were often weak in relation to the imperialist powers or they too became
invested with the standards of the powers they opposed. In her exploration of
the response of nationalist movements to the post-war collapse of the great
multinational empires which had dominated central and eastern Europe, Arendt
argued that the disappearance of these central despotic bureaucracies deprived
the formerly subject nations of a common focus for their anger and led to the
evaporation of the last remnants of solidarity between them. Now everybody was
against everybody else and most of all against their closest neighbours: Slovaks
against Czechs, Croats against Serbs, Ukrainians against Poles, all against Jews.
Inside every political community internal divisions arose between those who
belonged to the ‘nation’ and those who fell outside its boundaries: between
state-peoples who won the right to their ‘own’ state, minorities (like Jews, Roma
and Armenians) who were given special status, and stateless or displaced persons
recognised by no one. Even the treaties guaranteeing the rights of minorities had
the effect of declaring that only ‘nationals’ could be full citizens and that the rest
needed some law of exception. Everyone became convinced, as Arendt put it, that
‘true freedom, true emancipation, and true popular sovereignty could be attained
only with full national emancipation, that people without their own national
government were deprived of human rights’ (OT 272). This conviction was made
all the stronger by the fact that the two most powerful representatives of universal
human values – Woodrow Wilson and Lenin – both advocated a ‘right of nations
to self-determination’ which had the unintended consequence of inverting the
idea of the nation-state from a rational principle based on the determination
of the nation by the state, to an ‘ethnic’ principle based on the determination of
the state by the nation.

What Arendt observed is that when Europe was confronted by large numbers

of stateless persons, deprived of the right to have rights, it was but a short step to
ascribe their rightlessness to their own natural deﬁciencies. The victims themselves
found little consolation in appeals to the ‘rights of man’ and found hope mainly
in the thought of acquiring their ‘own’ national state. The idea of human rights,
which in theory referred to the inalienable dignity of every individual human being
that no power on earth could deny, became a mere abstraction since everything
depended on practices of the state. And the readiness with which those who
belonged to a political community came to justify the denial of the ‘right to have
rights’ to those who did not, became another of the established facts of twentieth
century politics. Totalitarian movements exploited this fact to declare hostility to
the idea of ‘right’ as such.

Totalitarian movements were not, in any conventional sense, nationalist

movements. They represented a revolt against the existing order of nation-states
and against the various nationalisms that were its ideological expression. Arendt
opens her discussion of the origins of totalitarianism on precisely this point, when

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she argues against the identification of modern, political antisemitism with
rampant nationalism and its xenophobic outbursts:

Unfortunately, the fact is that modern antisemitism grew in proportion
as traditional nationalism declined, and reached its climax at the exact
moment when the European system of nation-states and its precarious
balance of power crashed . . . The Nazis were not simple nationalists.
Their nationalist propaganda was directed toward their fellow-travellers
and not their convinced members; the latter, on the contrary, were never
allowed to lose sight of a consistently supranational approach to politics
. . . The Nazis had a genuine and never revoked contempt for the narrow-
ness of nationalism, the provincialism of the nation-state, and they
repeated time and again that their ‘movement’, international in scope
like the Bolshevik movement, was more important to them than any
state, which would necessarily be bound to a speciﬁc territory . . . The
antisemitic parties in the last decades of the nineteenth century were also
among the ﬁrst that banded together internationally.

(OT 4–5)

Antisemitic propaganda was directed at the ‘supranational Jews’ as a supposedly
rival international movement and used the ‘Protocols of the Elders of Zion’ as
‘evidence’ of the Jewish quest for ‘world empire’. Arendt emphasised that Nazism
and Stalinism ‘owed more to Pan-Germanism and Pan-Slavism (respectively) than
to any other ideology or political movement’ and shared with overseas imperialism
the ‘contempt for the narrowness of the nation-state’ (OT 222–3). She quotes
Hitler’s promise that the Nazi movement would ‘transcend the narrow limits
of modern nationalism’ (OT 359), and she describes the totalitarian movement
as ‘international in its organisation, all-comprehensive in its ideological scope and
global in its political aspiration’ (OT 389). Nationalism would simply frustrate
its exterior expansion. In Arendt’s view, the recourse of totalitarian movements
to an old-fashioned nationalism – the Nazi claim, for example that its ambitions
would be satisﬁed when the traditional demands of a nationalistic German foreign
policy were fulfilled, or the Stalinist claim that it would restrict its sphere of
operation to ‘socialism in one country’ – were basically lies designed to assuage
certain public opinions at home and abroad. The ideas of ‘race’ and ‘class’ both
cut across the unity of the nation and both were the grounds for alliances beyond
the nation.

Following Hegel, Arendt pointed to the equivocations and perplexities inherent

in the idea of right. If the modern idea of right was from the eighteenth century
attached to the nation state as its author, provider and enforcer, the decline of
the nation state signified the end of the rights of man. When certain groups
of people were denied the right to have rights by virtue of their statelessness, it
was a small step to attribute to such people certain natural characteristics (such
as their ‘Jewishness’) to account for and justify the expropriation of their rights.

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Rightlessness became the mark of Cain. Not only was the idea of right no longer
conceived through a universalistic lens, but the idea of the right to have rights
was itself denounced. The thought which Arendt pursued is that the ‘spiritless
radicalism’ whose hostility to the whole rational architectonic of right, law, nation
and state proved so violent and destructive, was itself the product of the system
of right broken down under the weight of its own contradictions and partial
reconfigurations. Perhaps the moral of the story is one that Arendt took from
Kafka’s K: ‘that human rights are [despite all] worth fighting for and the rule
of the castle is not divine law’ (cited in Bernstein 1996: 76).

Notes

1 It was published in Partisan Review 20(4) (1954). Arendt originally called it ‘The

difﬁculties of understanding’.

2 In the report of the war crimes Branch of the Judge Advocate’s Section of the Third

US Army, dated 21 June 1945, the conditions at the Flossenburg concentration
camp were investigated, and one passage may be quoted: ‘Flossenburg concentra-
tion camp can best be described as a factory dealing in death. Although this camp had
in view the primary object of putting to work the mass slave labor, another of its
primary objects was the elimination of human lives by the methods employed in
handling the prisoners. Hunger and starvation rations, sadism, inadequate clothing,
medical neglect, disease, beatings, hangings, freezing, forced suicides, shooting, etc. all
played a major role in obtaining their object. Prisoners were murdered at random;
spite killings against Jews were common, injections of poison and shooting in the neck
were everyday occurrences; epidemics of typhus and spotted fever were permitted to
run rampant as a means of eliminating prisoners; life in this camp meant nothing.
Killing became a common thing, so common that a quick death was welcomed by the
unfortunate ones.’ The report states that a certain number of the concentration camps
were equipped with gas chambers for the wholesale destruction of the inmates, and
with furnaces for the burning of the bodies. Some of them were in fact used for the
extermination of Jews as part of the ‘ﬁnal solution’ of the Jewish problem. Most of the
non-Jewish inmates were used for labour, although the conditions under which they
worked made labour and death almost synonymous terms. Those inmates who became
ill and were unable to work were either destroyed in the gas chambers or sent to
special inﬁrmaries, where they were given entirely inadequate medical treatment,
worse food if possible than the working inmates, and left to die. See EU 316.

3 Lessing wrote: ‘I am not duty-bound to resolve the difﬁculties I create. May my ideas

always be somewhat disjunct, or even appear to contradict one another, if only they
are ideas in which readers will ﬁnd material that stirs them to think for themselves.’
Arendt commented: ‘Lessing not only wanted no one to coerce him, but he also
wanted to coerce no one, either by force or by proofs. He regarded the tyranny of those
who attempt to dominate thinking by reasoning and sophistries, by compelling
argumentation, as more dangerous to freedom than orthodoxy.’ Later Arendt approves
Lessing’s sentiment that human society is in no way harmed by those ‘who take more
trouble to make clouds than to scatter them’ (Arendt ‘On humanity in dark times:
Thoughts about Lessing’, MDT 8 and 26).

4 There may arise moments of tension between understanding and judgement. The

Auschwitz ‘survivor’, Primo Levi, wrote of his desire to understand the Germans, but
he still recounts how he refused to meet Dr Muller, the German chemist at Auschwitz,
because he ran ‘the risk of believing him’ and because this human encounter might

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prevent him from making ‘the correct judgement’ (Levi 1986a: 218). Levi declares his
failure: ‘I cannot say I understand the Germans’ (Levi 1997a: 396); and he expresses
his fear of the consequences of understanding the Germans: ‘Perhaps one cannot,
what is more one must not, understand what happened, because to understand is
almost to justify . . . there is no rationality in the Nazi hatred: it is a hate that is not
in us; it is outside man; it is a poison fruit sprung from the deadly trunk of Fascism, but
it is outside and beyond Fascism itself. We cannot understand it, but we can and must
understand from where it springs, and we must be on our guard. If understanding is
impossible, knowing is imperative, because what happened could happen again’ (Levi
1997a: 395–6). Repeatedly Levi declares that he has not forgiven and that he is
not inclined to forgive, but fears that understanding the Germans might lead to
identiﬁcation, thence to justiﬁcation and ﬁnally to forgiveness.

5 Leon Trotsky was a notable exception. In his later writings Leon Trotsky had

no trouble in likening the Soviet Union to Nazi Germany, except for the greater
barbarism of the former, and characterising both as ‘totalitarian’. Trotsky faced up
to the conjunction of socialism and barbarism in a way that has been largely absent in
a Marxist tradition which has either denied or downplayed the barbarism of Soviet
socialism or has denied or downplayed the socialism of Soviet barbarism.

6 In his highly perceptive but largely forgotten article, ‘Ideas toward a sociology of the

concentration camp’ (The American Journal of Sociology 63(5) (1958), 513–22), H. G.
Adler writes of the camps: ‘If cruelty is a mental attitude with which society is often
burdened and which sometimes determines the very social existence of a community,
so are depersonalisation and its modern expression – reduction to a mass – essentially
social phenomena. Strictly speaking, the mass is a ﬁction, since no individual is
a member of the mass or of any one mass but is always an individual in a group of
men . . . But the mass can be deﬁned in the following way: mass is the elimination
of personality’ (p. 521). Adler goes on to discuss two ways in which this can occur:
‘men who renounce claim to personality and men who are forced to tolerate not being
recognised a individuals . . . The subjection is completed in the concentration camps
. . . Only this makes the concentration camp the place of utter human degradation’
(p. 522).

7 We are accustomed to the argument that the way people present themselves should

not be confused with who they are, but we are inclined to forget that this holds not
only when people present themselves as all-good but also when they present them-
selves as all-powerful. An analogy might be drawn with Michel Foucault’s error when
he turned the advertising slogans of Jeremy Bentham’s panopticon – that it would be
all-seeing, all-knowing, all-powerful, a perfect machine for ‘grinding rogues honest’,
etc. – into the actuality of disciplinary power. Foucault was ready to use Bentham to
devalue the claims of penal reformers who presented their reforms in the language
of the ‘rights of man’ or as advances in humanitarian practice, but he did not apply
the same sceptical consciousness to those like Bentham who claimed in an equally
illusory fashion that they had ﬁnally discovered the means of achieving a rational,
complete, pervasive, gaplesss and seamless power. Somehow, when it came to power
rather than to humanism, he missed the shadow that lies between the image and the
act. See Fine (1985: 189–202). The lebensraum theory of the Holocaust, that it can be
explained in terms of the positive ambition of the Nazis to ‘Germanise’ the East,
forgets that it was the abject failure of the ambition that preceded the extermination
of Jews.

8 Compare with Alan Bullock: ‘[Hitler] had a particular and inveterate distrust of

experts. He refused to be impressed by the complexity of problems, insisting until it
became monotonous that if only the will was there any problem could be solved’
(Bullock 1983: 381).

9 See also Bullock 1983: 381: ‘There was always more than one ofﬁce operating in

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any ﬁeld. A dozen different agencies quarreled over the direction of propaganda, of
economic policy, and the intelligence services. Before 1938 Hitler continually went
behind the back of the Foreign Ofﬁce to make use of Ribbentrop’s special bureau or to
get information through Party channels. The dualism of Party and State organizations,
each with one or more divisions for the same function, was deliberate. In the end
this reduced efﬁciency, but it strengthened Hitler’s position by allowing him to play
off one department against another.’ In September 1939, the Security Service of
the SS, a party organisation, was fused with the regular Security Police of the State,
which included the Gestapo, to form the Head Ofﬁce for Reich Security (RSHA),
commanded by Heydrich. The RSHA was one of twelve Head Ofﬁces in the SS, two
others of which were the Head Ofﬁce of the Order Police, which was responsible for
rounding up Jews, and the Head Ofﬁce for Administration and Economy (WVHA)
which ran concentration camps and later the ‘economic’ side of extermination. The
RSHA contained Section IV, the Gestapo, divided into Section IV-A, dealing with
‘opponents’ and Section IV-B, dealing with ‘sects’. The Higher SS and Police Leaders
were in a different command structure to the twelve ofﬁces of the RSHA, while
the Einsatzgruppen were under the command of the RSHA, but were not one of the
twelve ofﬁces (Arendt 1994a: 70). In this context, not even a thorough knowledge of
Nazi ideology can help in predicting what the will of the Führer will be on any given
day. Hitler summed this up as follows, in relation to the interpretation of law by
judges: ‘The legislator cannot possibly catalogue or prescribe for every conceivable
crime. It is the duty of the judge to pass sentence on the merits of the case. The Body
Judicial must be recruited from the best elements of the nation. The Judge must
possess a keen sensitivity which permits him to grasp the intentions of the legislature
. . . It is essential that a judge have the clearest possible picture of the intentions of
the legislature and the goal which this latter pursues’ (Hitler’s Table Talk, London:
Weidenfeld and Nicolson, 1953, 641, quoted in Allen Lane, Nuremberg – A Nation on
Trial, London: Penguin, 1979, 271). This restatement of an ordinary liberal analysis of
the relationship between the judiciary and the legislature gains a whole new meaning
when it comes out of the mouth of Adolph Hitler. The only law was the ‘intentions of
the legislature’. This is quite opposite to a bureaucracy which is organised on the basis
of formal rules which must be interpreted and carried out on every level of the
hierarchy.

10 According to Arendt the view that National Socialism represented an extreme form

of nationalism suppresses the memory of its ‘genuine and never revoked contempt for
the narrowness of nationalism’ and the ‘provincialism of the nation state’. Both the
Nazi and the Bolshevik movements inherited the mantle of the pan-national move-
ments of an earlier era which declared that ‘the movement, international in scope,
was more important . . . than any state which would necessarily be bound to a speciﬁc
territory’ (OT 4).

11 This episode also exposes the inversion of reason and passion that occurs in Bauman’s

reformulation of Kant. Kant identiﬁes ‘practical reason’ with larger moral concerns
and ‘passion’ with self-interest, self-advancement and self-preservation. Bauman
reverses this order of association: reason is now identiﬁed with self-interest, self-
advancement, self-preservation, etc. and morality is identiﬁed with the subject’s
emotional response to the face of the Other. In Kant’s hierarchy of reason and passion,
passion is subordinated to the demands of reason but it is not annulled. Bauman’s
hierarchy is more severe: he degrades ‘reason’ (which Kant called ‘passion’) in favour
of ‘morality’ (which Kant calls ‘reason’). The effect of this inversion is to disconnect
ethics from any conception of instrumental rationality.

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S TAT E A N D

R E VO L U T I O N R E V I S I T E D

Arendt

The critique of representation

In many contemporary commentaries, Arendt is acclaimed for her theory
of political action and critique of representation. Bonnie Honig, to take one
example, welcomes Arendt’s unwillingness to ‘allow political action to be a site
of representation’ and her determination to ‘reclaim the practice of politics from
representative, state-centred and state-centring institutions’ (Honig 1993: 124–5).
This is true as far as it goes and captures one side of Arendt’s politics. Arendt
followed a line of argument drawn from Hegel and Marx when she identiﬁed the
source of the defects of representative government in the modern separation of
formal legal equality and substantive social inequality which leaves political
community deeply vulnerable: ‘The fundamental contradiction between a political
body based on equality before the law and a society based on the inequality of the
class system prevented the development of functioning republics as well as the
birth of a new political hierarchy’ (OT 12). When she wrote On Revolution over
a decade later, Arendt had lost none of her old radicalism. She writes:

What we today call democracy is a form of government where the few
rule, at least supposedly in the interest of the many . . . and public
happiness and public freedom . . . become the privilege of the few.

(OR 269)

In a representative democracy, she wrote, only the representatives, not the people
themselves, have the opportunity to engage in those activities of ‘expressing,
discussing and deciding which in a positive sense are the activities of freedom’
(OR 235). The political parties are instruments through which ‘the power of the
people is curtailed and controlled’. Their programmes are ‘ready-made formulas
which demand not action but execution’ (OR 264). Their function is to exclude
the masses from public life and their effect is to create widespread indifference to
public affairs.

In her analysis of the American Revolution of 1776, however, Arendt acknow-

ledged the revolutionary origins of representative government and the ‘forgotten’

122

links forged between representation and revolution. The achievement of the
American Revolution was to construct a representative form of government based
on the consent of the people, a constitutional framework in which power was
balanced against power in a manner ﬁrst formulated by Montesquieu, and a Bill
of Rights that succeeded in guaranteeing the private rights and property of
individuals. And yet she also argues that the American revolutionaries mirrored
in their own self-conception the shapes and forms of the limited monarchy they
opposed, when they presented the revolution in the illusory light of a restoration
of ancient liberties. The result, as Arendt viewed it, was a combination of public
atrophy and private hypertrophy. The Bill of Rights was exemplary in this respect.
It defended the private realm against public power, but in a society whose main
defect derived not from the colonisation of private interests by public power but
rather from the colonisation of the public realm by private interests, it was the
public realm which was most in need of guarantees. To remedy this lack, Arendt
argued that a quite different solution would have been required: an institutional
and constitutional framework designed to guarantee the rights of public life as well
as private rights. She argued that this alternative was in fact proposed on the
margins of the revolution, particularly by Jefferson, but the prevailing decision to
place all guarantees on the side of private right and the consequent failure to
consolidate institutions of popular participation meant that public life was
inexorably subsumed to private interest. The freedom which the revolutionaries
themselves had enjoyed in the act of constitution was a freedom no longer available
once the constitution became an inviolable framework to which all (except
perhaps those with the money or power to buy themselves out) became subject.

The critique of the critique of representation

This critique of representation, however, reveals only half the picture. Arendt’s
originality lay in combining the critique of representation with what I have called
the critique of the critique of representation. The ‘bourgeois’ quality of the
American Revolution drove successive generations of revolutionary thought to
the French Revolution of 1789 as a more radical model. For example, in the same
year as Arendt wrote On Revolution, 1963, Jürgen Habermas wrote an essay on
Natural Law and Revolution in which he elevated the Rousseauian spirit of modern
natural law infusing the French Revolution, over the Lockeian spirit of traditional
natural law on which the American Revolution was based (Habermas 1974).
According to Habermas, the American Revolution was limited both in respect of
its traditional form (the restoration of an imaginary past) and its bourgeois content
(the protection of private wealth); the French Revolution, by contrast, was
premised on ‘a fundamentally new system of rights’ (Habermas 1974: 87) and a
strong sense of ‘participation in . . . political public life’ (Habermas 1974: 116).
Habermas endorsed what he read as the principles of the Rousseauian mandate –
that every individual has the right to participate in person in the making of laws,
that mere representation robs individuals of this right of participation in public life,

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that no private right is valid that is not ﬁrst validated by the people, and that a
political order ought to correspond with the idea of right itself.

Arendt’s critique of the Rousseauian idea, by contrast, follows closely that of

Hegel. She argued that the general will does not refer to what individuals actually
will, but to what they would will if they acted as rational and virtuous citizens.
Indivisible and dedicated to unanimity, the general will expresses the will of the
people only as a singular entity. It conceives the people as a ‘multi-headed monster,
a mass that moves as one body and acts as though possessed by one will’ (OR 94).
It presents itself as always right. It not only holds that the particular interests
of individuals are subordinate to the interest of the whole but that the value of
individuals should be judged by the extent to which they act against their own
interest and for the good of all. It tears the mask of hypocrisy off ‘society’
and celebrates ‘the unspoilt, honest face of le peuple’ (OR 106); but by pinning its
faith on the natural goodness of the people it prepares the ground for abolishing
all legal and institutional guarantees. It hears in the voice of the people only an
echo of its own voice, and the appeal to the people becomes a mask behind which
a new class of political representatives sets itself up in opposition to the people.
In the general will representation is not in fact overcome, it is reconﬁgured in a
less rational form. It becomes the enemy of all genuine public life. It inaugurates
a world of universal suspicion and denunciation. And it mirrors the absolute,
exclusive and indivisible sovereignty of the monarch it once opposed.

Arendt distinguished between two moments of liberation in the French

Revolution: the ﬁrst is political and aims at liberation from the old regime; the
second is social and looks to liberation from material want. In the ﬁrst, there is
a natural solidarity between leaders and the people in a shared project; in the
second, solidarity has to be produced artiﬁcially through an effort of solidarisation.
In the ﬁrst people have and exchange many opinions; in the second the ‘voice of
the people’ is identified with the unanimous cry for bread. It is in the second
revolution that the Rousseauian general will prevails. Arendt’s response was
equivocal. On the one hand, she declares that ‘every attempt to solve the social
question with political means leads to terror’ (OR 112) and that nothing could
be more ‘obsolete . . . futile . . . dangerous’ than to ‘attempt to liberate mankind
from poverty by political means’ (OR 114, my emphasis). On the other hand,
she recognises that ‘liberation from necessity because of its urgency will always
take precedence over the building of freedom’ (OR 112), that nothing deprives
people more effectively of the ‘light of public happiness’ more than poverty, that
in America the question of poverty was not really resolved but merely hidden from
sight (particularly in the case of slavery), and that in the final analysis ‘no
revolution was possible . . . where the masses were loaded down with misery’ (OR
222). She refers to the ‘compassionate zeal’ of the revolutionary ‘spokesmen for
the poor’ who attempt to transform the malheureux into the enragés by inviting
‘the rage of naked misfortune’ to pit itself against ‘the rage of unmasked corruption’.
It is this misuse of destitution in the struggle against tyranny that Arendt sees as
most destructive of the idea of right and most conducive to terror.

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The third road to which Arendt looked is neither the American nor the

French Revolutions but what she calls ‘the lost treasure of the revolutionary
heritage’ (OR 215 ff.). In America she ﬁnds it in the town-hall meetings which
Emerson dubbed the ‘units of the Republic’ and ‘schools of the people’ and
which she saw as embodying the true spirit of modern revolution: ‘the constitution
of a public space where freedom could be realised’ (OR 255). In France she ﬁnds
it in the sociétés révolutionaires and the sections of the Paris Commune which
originated in the election of representatives to the National Assembly and
then turned to the formation of an autonomous Commune. In the revolutions
of the twentieth century, right up to Hungary 1956, she ﬁnds it in the councils,
communes and soviets of modern working-class history: ‘spaces of freedom’
based on ‘the direct participation of every citizen in the public affairs of the
country’ (OR 264). She sees the councils not as temporary institutions of
struggle but as foundations, created from below, for an entirely new form of govern-
ment. The fact that they are always suppressed either by the forces of the
old order or by new revolutionary governments testiﬁes only to the freedom they
embody. For a moment Arendt places her hopes and expectations here, in a
revolutionary tradition which has no convergence with the inner tendencies
of totalitarianism.

Even as Arendt made this claim, she acknowledges that this ‘lost heritage’ is

beset by its own internal contradictions. The councils may be ideally suited to
their political function of ‘satisfying the human appetite for participation in public
life’, but not to their social functions of administration and management which
require more bureaucratic and hierarchical structures. Drawn into the social
domain, the council system is either destroyed by its own excess or, if it divests
itself of its social functions, this means that the first rule of these ‘spaces of
freedom’ is to forbid their occupants from speaking about the social conditions
which lead them to participate in the ﬁrst place.

The attempt to abstract politics

from society mirrors what it most opposes: the Rousseauian demand that when
citizens enter the assembly, they must leave behind their social existence and speak
only for the good of the whole. Arendt acknowledges too that the councils are
an ‘aristocratic’ form of government, in the sense that they are run by those who
are politically ‘the best’ and who show ‘a taste and capacity for speaking and
being heard’ (OR 279). As for the rest, they can ﬁnd consolation only in the notion
that they are exercising the most important negative liberty which the modern
world adds to the classical heritage: that of freedom from politics. The councils
may change the way in which political elites are selected, but not the fact of
selection itself.

Arendt reaches an impasse. Having argued that Rousseau’s critique of repre-

sentation serves to reinstate representation in an irrational form, she seeks to
perfect the critique of representation. From the American Revolution comes the
idea of rights; from the French the idea of a ‘beginning’; from the councils the idea
of public life. There is, however, no end to this journey. Clouds are made, not
cleared.

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Arendt draws inspiration from the Greeks – Athens rather than Rousseau’s

Sparta – and takes from the polis the idea of politics as a ‘space of freedom’ to which
citizens rise from their private lives.

It is a space in which citizens participate

in person in deliberation on public affairs, express and exchange their opinions in
the company of others, recognise their differences without violence or coercion,
and claim public recognition of their own special qualities. Politics signifies a
special sphere of human intercourse, distinguished from everyday life by ‘the gulf
that the ancients had to cross daily to transcend the narrow realm of the household
and “rise” into the realm of politics’ (HC 33). Arendt is tempted by the myth
of a ‘fall’ – from ancient politics where thought and action are united and the
function of politics is, as Socrates put it, to establish a ‘common world, built
on the understanding of friendship, where no rulership is needed’ (Arendt 1990:
81); to the rise of modern distinctions, ﬁrst expressed by Plato, between thought
and action, politics and philosophy, rulers and ruled. The polis is a benchmark
against which the modern reduction of workers to machines, action to labour, can
be denatured; a place where public happiness is an end in itself, the essential
ingredient of a good life and not merely an instrument for private purposes. By
contrast, modern political life appears a tawdry and dangerous business: passive,
non-participative, merely representative, beset by unresolved conﬂicts, and marked
by the decline of both private and public life before the ‘levelling demands
of the social’ (HC 39).

Arendt acknowledges, however, the contradictions of

the polis: women, foreigners, slaves, craftsmen, etc. are excluded; the freedom
of citizens exists only in contrast to the unfreedom of others; the time available
to citizens to act freely depends on the labour performed by others. Even for the
citizens themselves freedom is deﬁcient:

The perfect elimination of the pain of labour would . . . deprive the
speciﬁcally human life of its very liveliness and vitality . . . for mortals
the easy life of the gods would be a lifeless life . . . vitality and liveliness
can only be conserved to the extent that men are willing to take the
burden, the toil and trouble of life upon themselves.

(HC 120–1)

Neither the polis nor its modern reincarnations can remedy the exclusion from
the ‘light of public life’ which is the scandal of the modern state; nor can they
meet the demands of a philosophy of natality in which beginning was held
as the ‘supreme capacity of every man’ and ‘guaranteed by each new birth’ (OT
479). Ultimately, Arendt does not contrast the harmony of Greece with the
conﬂicts of the modern world, but the conﬂicts of the one with the conﬂicts of
the other.

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Antinomies in the idea of revolution

For Arendt, the essential idea of the modern revolutionary tradition is the consti-
tution of freedom (constitutio libertatis). The idea of freedom and the experience
of a ‘new beginning’ are said to coincide. Liberation from oppression aims at the
constitution of freedom; the constitution of freedom entails the constitution of a
republic; and the republic is identiﬁed not only with constitutional government
guaranteeing private rights but with the admission of everyone to the public realm.
Its aim is not ‘government’ but a form of political organisation in which the citizens
live together without any division between rulers and ruled – a condition Arendt
calls anarche or isonomia (OR 30). The difﬁculty has been well analysed by Miguel
Vatter (1998): if freedom is ‘the spontaneity of beginning something new’, then
it is impossible for it also to be ‘a stable, tangible reality’ (LM 203) or to acquire
the ﬁxed form of a constitution.

Vatter’s argument goes as follows: if freedom is a repeatable event out of which

political forms emerge and into which they can always be revoked, then the
‘something new’ loses its authority and we are left only with the spontaneity of
beginning as such.

But the idea of revolution contains both moments at once:

that of constituting a form of government and that of being a repeatable political
event, the spontaneity of new beginning and the founding of a ‘permanent, lasting
enduring body politic’ (OR 36). The strength of the idea lies in holding on to both
poles of this antithesis.

Arendt argues that political freedom can be realised in the form of a republic

without introducing the violence with which she charges the earlier revolutionary
thinking of Machiavelli, Robespierre and Marx. But if the ‘beginning’ (1789, 1776,
1917 . . .) is fetishised as the founding moment of all subsequent authority, then
we are back where we started: at an abstract freedom which only imagines its
separation from violence. The unconditional beginning turns into the condition
of all beginning. Machiavelli acknowledges that the revolutionary event is
inescapably violent and that every attempt to turn its emancipatory force into
a permanent and necessary state of affairs is doomed to failure because it is self-
refuting. It amounts to providing a necessary form for freedom from necessity.

Arendt distinguishes between rebellion and revolution on the ground that ‘the

end of rebellion is liberation, while the end of revolution is the foundation
of freedom’ (OR 142). She makes an analogous distinction between a legal govern-
ment that safeguards negative liberties and a republic where citizens are endowed
with positive liberty and participate in public affairs. The revolutionary act par
excellence is that of giving oneself a constitution – an act that creates power rather
than simply delimits it (OR 145). Arendt means by the constitution of freedom
something more than constitutional government. If the latter is deﬁned in terms
of the ability of law to delimit the rule of the government, the former entails
the empowerment of political subjects. At the same time, Arendt endows her
conception of freedom with those qualities that only constitutional government
can provide, the stability and endurance of a system of law. She argues that one

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of the things that distinguishes the American Revolution from the French is
that it did not ground law upon the will of the people but on the authority of the
Constitution. Without this precaution political freedom would not have found
its stability, for popular power, based merely on promises made among equals in a
moment of ‘no-rule’, is an inherently evanescent phenomenon. The law cannot
be founded on the basis of the power and freedom of the people, rather the power
and freedom of the people finds its stability in the law. In the act of political
constitution, therefore, there emerges what Vatter identiﬁes as ‘the problem of
law’: from where is the Constitution, understood as the ‘fundamental law’ that
gives authority to all other laws, to receive its own authority?

Some interpreters ascribe to Arendt the belief that ‘power’ and ‘authority’ have

the same root simply because they are both non-violent. But for Arendt, as Vatter
argues, power is not only antithetical to violence but also to rule, while authority
is by contrast the non-violent ground for rule. Hence the crucial question is what
happens to power when it is given a legal form, i.e. when it is constituted as
authority. For Arendt, political life stands in tension with authority: the former is
about freedom as ‘no-rule’, the latter is about the capacity to rule. Arendt tries to
resolve this problem by turning freedom (‘no-rule’) into the ground of rule, that
is, into the source of authority which grants freedom its ‘stable, tangible reality’.
Her thesis is that the Constitution, as the fundamental law, derives its authority
from the fact that the act of foundation is itself an absolute beginning:

From this [possibility] it follows that it is futile to search for an absolute
to break the vicious circle in which all beginning is inevitably caught,
because this ‘absolute’ lies in the very act of beginning itself.

(OR 204)

But in what sense is a beginning absolute? and what relation does ‘absolute
beginning’ have to the possibility of authority? How can ‘no-rule’ become a source
for rule? Arendt does not provide an argument for why a beginning, once posited
as an act of foundation, is in itself authoritative. She merely claims that ‘the very
concept of Roman authority suggests that the act of foundation inevitably develops
its own stability and permanence’ and that in this context authority is nothing
more or less than an ‘augmentation’ by virtue of which innovations and changes
remain tied back to the foundation which at the same time they augment.
Thus amendments to the Constitution ‘augment’ the original foundation of the
American Republic and the authority of the American Constitution resides in
its capacity to be so ‘augmented’ (OR 203). The beginning is authoritative only
because of an institution (religio) which takes it upon itself to bind all political
action back to this beginning and to rehearse its ‘spirit of foundation’ in a contin-
uous process of constitution-making (OR 201). Auctoritas means ‘to augment, to
increase and enlarge the foundations as they had been laid down by the ancestors’,
by keeping the act of foundation ‘present’ through history in what amounts to
the repetition of the beginning itself.

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The beginning functions as a principle of authority because it conditions the

repetition of itself. The repetition, though, does not begin anything radically new
and that is why ‘augmentation’ is recognisable as falling under a law. This is what
Arendt means when she says that the repetition of the revolutionary beginning
amounts to ‘a coincidence of foundation and preservation by virtue of augmen-
tation’ (OR 202). This beginning is absolute because it is absolved from being
‘just another beginning’ and is posited as the ‘first beginning’. Its repetition by
other beginnings simply reinforces its primacy. Augmentation turns out to be a
process of ‘continuous foundation’ whose continuity disallows other beginnings.
The politicisation of the citizen that is supposed to occur in the moment
of augmentation is always limited by the structure given by the founders.
Augmentation necessarily falls short of revolution, understood as the suspension
of every form of political rule and the opening of a space of ‘no-rule’. It amounts
to the reform of a given political system. The system of authority does not and
cannot permit the occurrence of new beginnings, that is, of republican events or
revolutionary discontinuities, but maintains the state in its capacity to rule without
violence. The system of authority sketched by Arendt is the negation of the act
of revolution, understood as the emergence of the new, since change could only
mean ‘enlargement of the old’ (OR 201).

This uninterrupted presence of beginning gives the second sense in which the

system of authority constructs an absolute concept of beginning which undermines
the idea of new beginnings. Authority absolutises the ‘beginning’ by abstracting it
from its own eventfulness. The need to keep the ‘beginning always present’ under-
mines the attempt to keep alive ‘the republic and its revolutionary spirit’. The
freedom of beginnings is not something that can be ‘always present’ without denying
itself: its character as an event stands opposed to its ground-like presence. Arendt
claims that ‘what saves the act of beginning from its own arbitrariness is that it
carries its own principle with itself’ (OR 212). If this is taken to mean that each
beginning is a principle only unto itself, this limitation is what frees the possibility
for other beginnings. Each beginning is just another beginning and cannot be
posited as unique or absolute. Such a claim presupposes a proliferation of beginnings
and an absence of originals to be imitated or examples to be followed. But then all
that is begun is beginning itself. The authority of beginning, by contrast, is intended
to prohibit just this proliferation of beginnings, but at the cost of giving it a quasi-
religious sanction. If freedom as beginning is a ground, then every subsequent political
change has to assume the shape of a reform and political life is inevitably closed off
from republican events of ‘no-rule’. Freedom can only be a beginning if it somehow
subverts the fetishism of beginnings in favour of their dissemination, but then
political freedom has to pay a price for this plurality, for it can no longer claim to
be authoritative. It cannot set itself up as an absolute foundation, for to do so would
be to give up on its proper self-understanding as the power to changes the times.

Faced with these contradictions, which he analyses so precisely, Miguel Vatter

comes to a deﬁnite conclusion: namely, that freedom is an event and must remain
open to its own historicity. Let me quote:

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Hannah Arendt in the end accepts that freedom exists without ground
but she cannot articulate this lack in positive terms, as freedom’s internal
relation to its historicity, whose structure is that of originary repetition.
In this case, Arendt did not follow her distant cousin Walter Benjamin’s
Theses on the concept of history, where revolutionary praxis is explicitly
understood in terms of active historical repetition. The politics of histor-
ical repetition, in all its possible variants, remains a promising, yet barely
trodden, path for thought.

(Vatter 1998: 83)

The conclusion Arendt draws is different. The problem with plumping for one
side of this contradiction against the other, for freedom as a repeatable event rather
than as ground, is that it might appear from one angle to be ‘anti-authoritarian’
and from another to convey the destruction of all that is determinate. If we plump
for freedom as ground rather than repeatable event, then from one angle it might
appear to guarantee lasting institutions but from another to deny freedom beyond
the augmentation of the constitution. The aporia of revolution which Arendt
analysed, signiﬁes that we have to stop thinking that the concept of revolution
can be actualised in some ideal form, if only we can ﬁnd or think it, and revive
Hegel’s recognition that revolution itself is a form of right that is relative to
other forms, and is not free of the contradictions which beset the system of right
as a whole. This is not to abandon or to reject the idea of revolution, which is
our only resource against the continuation of injustice, but rather to bring it down
to earth, to recognise its mystique and acknowledge that it is not above the
equivocations of modern political life.

Notes

1 Arendt is not indifferent to different forms of representation. Her discussion of

whether representatives are to act according to instructions received from their
electors (a mandat imperatif) or to be independent of those who elected them until the
next election, may appear irresolvable: if representatives are bound by instruction,
they become mere messengers or experts, paid agents of those unable or unwilling
to attend public business; if they are independent, the idea that all power resides in the
people is true only for the day of the election, after which the distinction between
rulers and the ruled reasserts itself and public business becomes again the privilege of
the few. Arendt also distinguishes between the relative stability of the ‘British’ two-
party system in contrast to the relative instability of the multi-party systems operating
on the Continent. The difference between them, as Arendt sees it, is that in multi-
party systems there is a separation of state and party, such that the state stands above
the disparate parties and claims to represent the nation as a whole; while in the two-
party system state and party are uniﬁed in the sense that the ruling party is both
representative and governmental. Since multi-party government is formed through
party alliances, no one party can take responsibility for government. The parties,
therefore, never transcend the particular interests which they represent to become
parties of government managing the public affairs of the people as a whole (OT
250–66).

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2 Arendt writes: ‘The direction of the American Revolution remained committed to

the foundation of freedom and the establishment of lasting institutions, and to those
who acted in this direction nothing was permitted that would have been outside the
range of civil law. The direction of the French Revolution was deﬂected almost from
its beginning from this course of foundation through the immediacy of suffering; it was
determined by the exigencies of liberation not from tyranny but from necessity, and
it was actuated by the limitless immensity of both the people’s misery and the pity this
misery inspired. The lawlessness of the “all is permitted” sprang here still from the
sentiments of the heart whose very boundlessness helped in the unleashing of a stream
of boundless violence’ (OR 92).

3 Sheldon Wolin, among many others, argues that Arendt’s circumscribed notion

of politics left the councils void of substance. What else were people to talk about
but their social concerns? He writes: ‘Arendt’s indifference, to put it blandly, to the
culture of ordinary and poor citizens produced a severely impoverished notion of
the historical meaning of the political’ (Wolin 1994: 300).

4 In The Human Condition Arendt writes of what she calls ‘the space of appearance’

which ‘comes into being wherever men are together in the manner of speech and
action, and therefore predates and precedes all formal constitution of the public realm
and forms of government’ (HC 199). The peculiarity of this public space is that it does
not survive the actuality of the movement which brought it into being but ‘disappears
not only with the dispersal of men . . . but with the arrest of the activities themselves’
(HC 199). Arendt explores the potentiality of beginning something genuinely new
that lies in the simple fact of being, acting and speaking together, but she does not
consider in this work the problems tied to the political foundations of such a concept
of free action. In On Revolution this space of free political action is explicitly identiﬁed
with that in which revolutionary action occurs.

5 The notion that violence in the ancient world was pre-political and that only ‘ﬁnding

the right words at the right moment’ was political, does not make us forget that ‘great
words’ are themselves a preamble to military force. Similarly, the notion that in the
modern age ‘action’ is opposed to the forces of commodity fetishism does not make us
forget that great deeds, as every publicist knows, may be sponsored and sold.

6 Miguel Vatter makes the point that the aporetic character of Arendt’s discourse

on political freedom is not easily granted by those interpreters who seek to extract
from her texts a positive political project tied to action rather than representation. As
Bonnie Honig has it, for Arendt ‘the problem of politics in modernity is, how do we
establish lasting foundations without appealing to gods, a foundationalist ground,
or an absolute? In short, is it possible to have a politics of foundation in a world devoid
of traditional (foundational) guarantees of stability, legitimacy and authority?’ (Honig
1993: 97). From this perspective, it seems that Arendt sets out to resolve the ‘legiti-
macy crisis’ tied to the downfall of traditional or metaphysical sources of authority by
seeking new, post-metaphysical sources for authority. But this reading conceals how
far a ‘politics of foundation’ is a contradiction in terms, since the very project of
establishing ‘lasting foundations’ for freedom is part and parcel of what extinguishes
freedom.

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K A N T ’ S C O S M O P O L I TA N

I D E A L A N D H E G E L’ S C R I T I Q U E

Kant’s magniﬁcent endeavour to develop a theory of cosmopolitanism was pursued
in a series of essays spanning a twelve-year period before and after the French
Revolution.

These essays have become a focus for contemporary study among

those who see the need to revive the idea of cosmopolitanism for our own age,
and they are widely seen as a philosophical origin of contemporary ideas of
cosmopolitan democracy (Bohman and Lutz-Bachmann 1997; Habermas 1998;
Apel 1997; Honneth 1997; Archibugi, Held and Kohler 1998; Held 1995; Held
1997). Kant’s work expresses the fact that the modern idea of cosmopolitanism is
coeval with the rise of nationalism and presents itself as an antidote to the wrongs
of nationalism. Among contemporary supporters of the Kantian idea of cosmopoli-
tanism, criticisms of Kant’s approach take the form of ironing out inconsistencies
in his theory (especially concerning the relation between his philosophy of
history and his metaphysics of morals), developing further his critique of absolutist
notions of national sovereignty, adapting his theory to modern conditions,
and endorsing his essential insight. In the words of Karl-Otto Apel, they seek to
‘think with Kant against Kant’ and reserve their real criticisms for the ‘scurrilous’
and ‘contemptuous’ dismissals of the alleged formalism, hypocrisy and false
universalism of the cosmopolitan idea – such as is to be found in Carl Schmitt’s
anti-humanistic observation that the concept of humanity either ‘excludes the
possibility of a foe’ or turns the foe into an ‘inhuman monster . . . who must be
definitively annihilated’ (Habermas 1997: 146). They criticise Hegel for his
allegedly regressive, bellicose and nationalistic critique of Kant which Habermas
describes as ‘close’ to that of Schmitt. This view – that, as Adorno put it, Hegel’s
nationalistic doctrine of the ‘popular spirit’ was reactionary in relation both to
Kant’s idea of a cosmopolitan order and his own earlier idea of the ‘world spirit’
(Adorno 1990) – has become a kind of orthodoxy. I want to suggest, however,
that this version of Hegel’s critique of Kant’s cosmopolitan ideal seriously misreads
what Hegel was doing and in misreading Hegel loses sight of the substance of his
objections.

132

Kant’s cosmopolitanism

In his Idea for a Universal History from a Cosmopolitan Point of View, written
in 1785, Kant posed the attainment of a cosmopolitan order as the greatest
problem facing the human race – even greater than the achievement of republican
civic constitutions within particular nation-states. Kant recognised that it was
a ‘fantastical’ idea, without precedent in world history, but he also argued that it
was a ‘necessity’ if the human race was not to consume itself in wars between
nations and if the power of nation-states was not to overwhelm the freedom
of individuals. By a ‘cosmopolitan order’, Kant meant an order in which there
are established ‘a lawful external relation among states’ and a ‘universal civic
society’. The idea of ‘lawful external relations among states’ was a reference to
the development of international law and institutions which would treat states as
legal subjects with rights and obligations vis-à-vis other states and which would
aim to create peaceful relations among them. The idea of a ‘universal civic society’
was a reference to the development of ‘cosmopolitan law’, that is, a law which
would guarantee the fundamental rights of every individual, by virtue of his or her
humanity, whether or not such rights were respected by individual nation-states.
Kant argued that the idea of a cosmopolitan order required the institution of a
league or federation of nations which would guarantee with its ‘united power’ the
security and justice of even the smallest states as well as the basic rights of even
the most downtrodden individuals. This global authority would not be a world
government but a federation in which the autonomy of nations and differences of
language, religion, culture, etc. would be respected. It would act only in accordance
with decisions reached under the laws of the nations which composed it. Kant
recognised that there was little overt sign of a cosmopolitan order of this sort
coming into being, but he argued that its establishment was nonetheless a rational
necessity and a moral imperative.

This, roughly speaking, was Kant’s view prior to the French Revolution. In

Perpetual Peace (1795), written ten years later, Kant acknowledged that his idea
looked no less fantastical since European states related to one another ever more
like individuals in a Hobbesian state of nature. They exploited newly discovered
colonies as if they were ‘lands without owners’, and they treated foreigners coming
to their lands more like enemies than guests. This view was doubtless reinforced
by the collapse of cosmopolitan ideals following the French Revolution. For a
brief period of time at the start of the Revolution, something that looked like
a cosmopolitan policy was developed by its leaders. Decrees were passed offering
French citizenship to all foreigners who had resided in France for five years
and who had means of subsistence; societies and newspapers for foreigners
were encouraged; the use of force against other nations was disavowed; support
was given to revolutionaries from other countries to rid themselves of despotic
rulers; and certain ‘benefactors of humankind’ (including Tom Paine, Mary
Wollstonecraft, Jeremy Bentham and William Wilberforce) were awarded
honorary French citizenship. This new dawn was not to last. After the launching

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of the so-called ‘revolutionary wars’, xenophobia became an active political
force: foreigners were held responsible for all that went wrong – military defeats,
economic difﬁculties, political crises, foreign clubs and newspapers were disbanded,
and revolutionary terror was often directed against foreigners. Even Tom Paine,
‘citizen of the world’, the man who signed himself Humanus, was impoverished,
imprisoned and then expelled (Kristeva 1991). The immediate occasion for
the writing of this essay was an event that was hardly portentous for Kant’s
cosmopolitan idea: it was the signing of the Treaty of Basel in which Prussia agreed
to hand over to France all territories west of the Rhine in exchange for being
allowed to join Russia and Austria in the east in partitioning Poland. It was
precisely the sort of realpolitik treaty that Kant condemned as a mere ‘suspension
of hostilities’ and as the enemy of true peace.

Kant’s great merit was not to surrender to the prevailing nationalistic currents.

He saw an analogy between the Hobbesian ‘state of nature’, characterised by the
war of all individuals against all individuals, and current relations between states:

each state sees its own majesty . . . precisely in not having to submit to
any external legal constraint, and the glory of its ruler consists in his
power to order thousands of people to immolate themselves for a cause
which does not truly concern them, while he need not himself incur any
danger whatsoever.

(KPW 103)

This state of affairs was, according to Kant, as insupportable in relations between
states as it was in relations between individuals. Either it displayed ‘the depravity
of human nature without disguise’, or it diminished the concept of international
right by interpreting it in a ‘meaningless’ way as the right to go to war:

There is only one rational way in which states coexisting with other states
can emerge from the lawless condition of pure warfare. Just like individual
men, they must renounce their savage and lawless freedom, adapting
themselves to public coercive laws, and thus form an international state
(civitas gentium), which would necessarily grow until it embraced all the
peoples of the earth.

(KPW 105)

In such an order, he wrote, standing armies would be abolished, no national debt
would be incurred in connection with the external affairs of state, no state would
forcibly interfere in the constitution and government of other states, and no acts
of warfare would be allowed which would ‘make mutual confidence impossible
during a future time of peace’ (KPW 125). The right of ‘universal hospitality’ would
mean that foreigners would not to be treated with hostility when they arrived on
another territory and the indigenous inhabitants of newly conquered countries
would not to be ‘counted as nothing’ (KPW 106). Out of the ‘unsocial sociability

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of man’ there would arise a true community of nations. Once established, there
could be no return to a state of nature between states but neither would the
cosmopolitan order be equated with the domination of one country. A federation
of free states, such as Kant envisaged, would not be an amalgamation of separate
nations under a single power (France) which rules over the rest; it would not be
a ‘universal despotism which saps all man’s energies and ends in the graveyard of
freedom’; it would rather entail the separate existence of many independent states
and the peace it created would be guaranteed by an equilibrium of national forces
and by a vigorous rivalry between them.

Kant put forward a beautiful utopian vision of perpetual peace, but he also

looked to certain underlying historical trends to support its validity and viability.
First, he argued that it was a kind of realism since it recognised the fact that ‘the
peoples of the earth have entered in varying degrees into a universal community
and it has developed to the point where a violation of rights in one part of the
world is felt everywhere’ (KPW 107–8). Second, he argued that it corresponded
with the necessities of economic life in an age of commerce when peaceful
exchange was generally more proﬁtable than the pursuit of war. Third, he argued
that it corresponded with the interests of the states themselves which had been
forced to arm themselves in order to encounter other nations as armed powers
but which were now burdened by the increasing costs and risks of war. Fourth,
he argued that the spread of republican governments – based on the example
set by one ‘powerful and enlightened nation’, France – meant that rulers could
no longer declare war without consulting their citizens and that the ‘moral
maturity’ of citizens was higher than in monarchical states. Kant acknowledged
that even in advanced European countries people were ‘civilised’ mainly in respect
of ‘courtesies and proprieties’ and remained a long way from being ‘morally mature’.
He also acknowledged that as long as nation-states applied their resources to
violent schemes of expansion, no progress could be expected on this front since
nothing more obstructs the efforts of people to ‘cultivate their minds’ than
militarism. But behind the scenes he insisted that ‘providence’ or ‘the plan of
nature’ or the ‘hidden hand’ of history or the ‘cunning of reason’ – call it what you
will – was working toward a universal end: ‘a perfect civil union of humankind’.
Beneath the appalling violence of modern warfare, he argued that ‘the germ
of enlightenment always survived, developing further with each revolution, and
prepared the way for a subsequent higher level of improvement’. The costs,
risks and horrors of war, the growing maturity of the masses, the expansion of
commerce, the interests of the rulers – all these factors were combining to impel
the human species to regulate the hostility which prevailed among states. Thus
the eventual achievement of a cosmopolitan order was in Kant’s view guaranteed
‘by no less an authority than the great artist Nature herself ’ (KPW 114).

Over and above any such historical arguments, Kant maintained that the idea

of cosmopolitan right was a postulate of practical reason – a pure idea derived from
the principles of right and a duty which every human being had to observe whether
or not it accorded with their inclinations:

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the rights of man must be held sacred, however great a sacriﬁce the ruling
power may have to make . . . All politics must bend the knee before right.

(KPW 125)

The less true to immediate life the idea of a cosmopolitan order became, the more
Kant abstracted this idea from experience. This abstraction reached its highpoint
in the Metaphysics of Morals, where Kant argued that we have a duty to act in
accordance with the idea of perpetual peace, even if there is not the slightest
possibility of its realisation. Kant held that the proposition that there shall be
no war is a categorical imperative and that we must act as if it could really come
about, even if its fulﬁlment were forever to remain an ‘empty piety’. Kant declared
that reason ‘absolutely condemns war’, and makes the achievement of peace into
an ‘immediate duty’; it proclaims that ‘there shall be no war’, that the ‘disastrous
practice of war’ must end forever. This, he writes, is the ‘irresistible veto’ of the
‘moral, practical reason within us’ (KPW 164–74). The rule that we must make it
our maxim to work unceasingly toward perpetual peace, Kant writes, cannot be
derived from experience; if it were, then those who fared best under present
arrangements would set these arrangements up as a norm for others to follow. It
has to be based on metaphysics and metaphysics, for Kant, becomes all the more
important in dark times.

Kant accepted that provisionally, that is, prior to the attainment of perpetual

peace, wars may be justiﬁed but argued that there must be instituted certain rules
of war to limit how it is inaugurated and conducted. For example, the traditional
right of sovereigns to declare war and then to send subjects to ﬁght on their behalf
must be abolished. This so-called ‘right’ was ‘an obvious consequence of the right
to do what one wishes with ones own property’, but it is impermissible to apply
it to the relation of rulers to citizens who are ‘co-legislative members of the
state’ and must therefore give their free consent through their representatives to
‘every particular declaration of war’ (KPW 166). Once war is declared, it must
be conducted in accord with principles that leave states with the possibility of still
entering a ‘state of right’. This means that there can be no merely punitive wars,
no wars of extermination or enslavement, no means of defence which would render
subjects unfit to be citizens, no demands of compensation for the costs of war,
no ransom of prisoners, etc. Every nation has the right to have commerce with
other nations, every individual to visit other countries, and if colonisation may
be justiﬁed in terms of ‘bringing culture to uncivilised peoples’ and purging the
home-country of ‘depraved characters’, Kant argued that it cannot wash away
the stain of injustice caused by plunder, slavery or extermination.

Kant and contemporary social theory

The greatness of spirit which Kant exhibited was to stand up to the rising
nationalism of his times and defend the best traditions of enlightenment univer-
salism. By combining a metaphysics of justice with a teleological philosophy of

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history, he lifted the cosmopolitan ideal both above a dispiriting positivism which
declares that the way things are is the way they have to be, and above a superﬁcial
empiricism which declares that the ways things look on the surface is the totality
of what those things are. Kant did not simply abstract his cosmopolitan ideal
from history, as is sometimes alleged, but rather fought against a view of history
which cannot see beyond what already exists and which cannot reach for another
form of life. Kant’s ‘abstract ideal’ was his attempt to stem the growing tide of
nationalism and to harmonise the principle on which the world revolution was
turning, the individuality and sovereignty of the state, with the universalism of
enlightened thought. The virtue of this approach is still apparent in recent
attempts to apply Kant’s cosmopolitan way of thinking to contemporary social
theory.

For example, the idea of France as a ‘nation without nationalism’ put forward

by Julia Kristeva (1993) in her book Nations without Nationalism, is a good case
in point. Kristeva draws on Montesquieu to argue that the French concept of
the nation permits us to live with different people while retaining our own moral
codes; it expresses a paradoxical community of foreigners reconciled to their
foreignness; it puts the national and the cosmopolitan in the right order –
humanity ﬁrst and the nation second; it forces everyone to take into account both
their own values and their opposite; it constructs a polymorphic and perverse
culture which returns everyone to their otherness. If it is not always able to
withstand the attempts of ‘disappointed souls’ to restore their own battered identity
by rejecting others, she presents such dogmatism as a violation or betrayal of
French nationhood – or at least as a loss of republican spirit. Kristeva echoes
Kant when she dissociates the idea of republicanism from nationalism. However,
the idea of the French nation constructed after the Revolution also proffered
a new and arguably more dangerous form of nationalism – the nationalism of a
‘universal nation’ whose own particular interests are held to accord with the
interests of humanity as a whole. When Kant maintained that the proliferation
of republicanism was the condition of cosmopolitan progress, he obscured the
existence of its own global ambitions, its own attachments to war and conquest,
and its own notions of a natural, fundamental and given ‘Frenchness’ or
‘Englishness’ or ‘Jewishness’ or ‘Germanness’. It is perhaps in this very conception
of a ‘universal nation’, a nation without nationalism whose particular interests are
identical to the universal interest, that the roots of modern nationalism are most
deeply and ﬁrmly embedded.

At the same time as Kristeva depicts ‘French’ republicanism as fundamentally

cosmopolitan, she associates the rise of nationalism with the ‘German’ roman-
ticism of the likes of Johann Gottfried Herder (1744–1803) whose ideal of
the Volkgeist is said to express a mystical concept of the nation, rooted in soil,
blood and language rather than in right, law and civil society. Following Kant,
Kristeva contrasts the universalistic and differentiated political community of
Montesquieu’s esprit générale with the cultural notions of national community that
appear as the basis of Herder’s idea of the volk. Herder himself, however, hardly

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ﬁts the role allocated to him. His love of national peculiarities, differentiated on
the basis of their languages, transcends ofﬁcial national boundaries and narrow
chauvinism. Herder wrote: ‘How the dickens did the Germans, who were
ordinarily praised for showing a manly modesty . . . and appreciating the merits
of foreigners, come to be so unjustly and crudely scornful of other nations,
and precisely of those they have imitated, from which they have borrowed?’
Herder warned that ‘the historian of mankind should be careful not to choose
a given people exclusively as a favourite of his, thus diminishing the importance
of lineages’. Herder’s polemics against ‘cosmopolitan despotism’ did not express
an unenlightened nationalism but cautioned against the overweening pretensions
of the most advanced nations. He remained true to enlightenment cosmopoli-
tanism but unlike Kant, who maintained that to interpret history philosophically
we must assume a goal to which it is progressing, Herder insisted that every period
must be valued for its own sake rather than be seen simply as a precursor to later
periods; and unlike Kant, who always insisted on the need for a state to coerce
people into obeying the law, he criticised both Kant’s view and the national
principle that people need a master and that master should be the state (KPW
195–7).

Perhaps the real culprit as far as the intellectual rise of nationalism is concerned,

should be Fichte rather than Herder. But Fichte did not cease to be an enthusiast
for the French Revolution when he became an ultra-nationalist. His nationalism
was implicated in, if not inseparable from, his republicanism. Fichte reveals that
the diremption of nationalism and republicanism is forced. Even the Declaration
of the Rights of Man and Citizen declares that ‘the source of all sovereignty resides
essentially in the Nation’ and that there is no right that does not derive from the
nation. Elie Kedouvie explores how far this mix of republicanism and nationalism,
whose premise is that the self-determination of the will consists in the absorption
of the individual consciousness in the whole, pervades Fichte’s political writings.
In Foundations of Natural Law (1796) he writes:

I want to be a human being . . . it is the aim of the state fully to procure
this right for man . . . Between the isolated man and the citizen, there
is the same relation as between raw and organised matter . . . In an
organised body each part continuously maintains the whole, and in
maintaining it, maintains itself also. Similarly the citizen with regard
to the state.

(Kedourie 1993: 30–2)

In The Closed Commercial State (1800) Fichte argues that true individuality can
be secured only in a state which regulates to the minutest detail the lives of citizens.
In The Characteristics of the Present Age (1806) he writes that ‘a state which
constantly seeks to increase its internal strength is . . . forced to desire the gradual
abolition of all favouritisms and the establishment of equal rights for all people,
in order that it, the state itself, may enter upon its own true right’ (Kedourie 1993:

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35). In Addresses to the German Nation (1807–8) he rejects a state which merely
maintains ‘internal peace’ or satisﬁes ‘the needs of material existence’, and insists
that this is only preparation for ‘what love of fatherland really wants to bring
about, namely, that the eternal and the divine may blossom in the world’
(Kedourie 1993: 39). Hegel rejected Fichte’s political philosophy but saw that its
signiﬁcance lay in demonstrating the origins of nationalism within the modern
system of right – embodied in the right of a people to determine their own future,
to learn from their own experience, to create and change constitutions according
to their own needs and circumstances, and to think for themselves what
constitution is best.

Jürgen Habermas also follows in Kant’s footsteps when he argues that

nationalism once provided certain ‘moral resources’ for anti-imperialist struggles
and for the building of welfare states, but that it can no longer meet the needs
of the modern age. He endorses Kant’s realist argument that there is no state
any more that does not contain a mix of nationalities, cultures and traditions and
that is not itself inserted in a larger international set of associations. If this was
beginning to be true in Kant’s time, Habermas rightly says that it is all the more
true in our own global society. Habermas repudiates the central principle of all
nationalism – that national identity should be converted into a principle of
political cohesion and that the boundaries of the state should be identiﬁed with
those of the nation – and advances in its place what he calls a ‘post-nationalism’.
This is conceived as a cosmopolitan consciousness that relativises one’s own way
of life, grants strangers with all their idiosyncrasies the same rights as oneself,
enlarges tolerance, shows respect for others, and replaces the conventional
law-and-order orientation based on ﬁxed rules, unreﬂective duty and respect for
authority with a mature, reflective, self-scrutinising attitude toward identity
formation. Cosmopolitanism signifies for Habermas the capacity to evaluate
moral authority critically in terms of general ethical maxims and thus to surpass
the ‘sociocentrism’ of a traditional order. It is hard to disagree with these senti-
ments but Habermas’s identification of post-nationalism with ‘constitutional
patriotism’ reveals a link with nationalism that is not so easily severed. He
concedes that there always lurks the danger that the universalistic elements of
republicanism may be swamped by the particularistic self-assertions of one
nation against another, but he insists that the ‘abstract viewpoints of legality,
morality and sovereignty under whose aegis bourgeois society developed’ are
‘best suited to the identity of world citizens, not to that of citizens of a particular
state that has to maintain itself against other states’ (Habermas 1991: 165). He
concedes also that the principle of constitutional patriotism might be turned into
a demand for unthinking obedience to the law – an ‘authoritarian legalism’ which
Kant may have suffered from – but the more fundamental principle he ﬁnds both
in Kant and in the idea of constitutional patriotism is one which distinguishes
between law and right in such a way that all positive laws must be evaluated in
the light of universal precepts drawn from the idea of right and embodied in the
constitution.

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Habermas proffers a cosmopolitan post-nationalism as an antidote to the wrongs

of nationalism, but the substance of post-nationalism retains an affinity to
patriotism – to faith in the state or at least in its constitution. Habermas reserves
the term ‘nationalism’ for the kind of regressive credo which unreflectively
celebrates the history, destiny, culture or blood of a nation – ‘a terrible, horriﬁc
regression Western Europe only surmounted . . . in 1945’ (Habermas 1991: 102)
From this perspective, nationalism appears as a sign of personal and political
immaturity, as the enemy of the republican tradition, as that which has at all costs
to be overcome. It is a conception, however, which conceals the presence of
nationalism in the republican tradition itself and, even in the very presentation
of ‘nationalism’ as its enemy (see Fine 1994b). It is this ‘neo-Kantian’ way of
thinking – a way of thinking that is now widely disseminated in contemporary
social theory – that Hegel explores, confronts and criticises, and it is in part ‘our’
own attachment to this way of thinking that, I think, makes his ideas on this
question so difﬁcult for us to assimilate.

Hegel’s critique of Kant’s cosmopolitan ideal

Nowhere does Hegel say that Kant was wrong to oppose the growth of nationalism
or to provide a cosmopolitan alternative to it. On the contrary, he recognised
that the elaboration of the cosmopolitan idea was one of the great achievements
of Kant’s political writings. Hegel’s critique was based on other grounds – it had
to do with the merely formal and legal conception of cosmopolitanism which Kant
put forward.

One issue concerns Kant’s analysis of nationalism and more especially his belief

that nationalism is in principle opposed to ‘genuine principles of right’. Kant
viewed nationalism as a kind of enslavement to the passions, an error, something
alien to the free spirit of republicanism; and as nationalism gained ascendancy
in the wake of the French Revolution, he could only console himself with the
thought that cosmopolitanism was the inevitable end of all this violence. Hegel
argued, by contrast, that nationalism, far from being opposed to the modern
republican spirit, was in fact its faithful companion. If for Kant nationalism was a
sign of human immaturity, at best a stepping stone on the road to the enlight-
enment to come, for Hegel the roots of nationalism may be traced back to the idea
of right itself. He writes:

Patriotism in general is certainly based on truth . . . As such, it is merely
a consequence of the institutions within the state, a consequence in
which rationality is actually present, just as rationality receives its prac-
tical application through action in conformity with the state’s institutions
. . . This disposition is in general one of trust . . . or the consciousness
that my substantial and particular interest is preserved and contained
in the interest and end of another (in this case, the state) and in the
latter’s relation to me as an individual. As a result, this other (the state)

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immediately ceases to be an other for me, and in my consciousness of this
I am free.

(PR §268)

Here Hegel is not advocating patriotism on the ground that my interest is preserved
in the interest of the state (a ‘truth’ that only holds within ﬁxed limits); rather he
is drawing our attention to the rational character of patriotism in the modern
system of right:

Patriotism is frequently understood to mean only a willingness to perform
extraordinary sacriﬁces and actions. But in essence, it is that disposition
which in the normal conditions and circumstances of life habitually
knows that the community is the substantial basis and end . . . Human
beings . . . convince themselves that they possess this extraordinary
patriotism in order to exempt themselves from the genuine disposition,
or to excuse their lack of it.

(PR §268

)

On the one hand, Hegel declares that there is nothing wrong in ‘feeling’, or as
he puts it in his introduction to the Philosophy of History ‘nothing great in history
can be achieved without passion’. On the other hand, patriotism in the modern
sense of the term has little to do with extraordinary and passionate acts. If Kant
had the insight to warn of the dangers of nationalism as a wild and destructive
passion, and to construct a rational cosmopolitan opposition to it, Hegel argued
that his separation of nationalism from reason, right, law and the state is artiﬁcial
and forced – and not true to Kant’s own analysis of right.

From the point of view of the citizen Hegel argues that when ‘the state as such

and its independence are at risk’, all citizens are required not only to rally to the
state’s defence but also to sacrifice their individuality to the ‘individuality of
the state’. When standing armies are formed, their ethos is not so much that
of individual courage and valour as that of ‘sacriﬁce in the service of the state’ and
‘integration with the universal’ (PR §327

). Here the individual counts merely

as ‘one among many’.

Individuality falls before the demands of discipline. Hegel

argues that the ultimate end of valour in the modern state is not the attainment
of individual virtue but the sovereignty of the state itself, and that for the indi-
viduals who are caught up as cogs in the military machine, this entails the
‘harshness of extreme opposites’:

alienation as the existence of freedom . . . supreme self-sufﬁciency which
at the same time exists in the mechanical service of an external order
. . . total obedience and renunciation of personal opinion and reasoning,
and hence personal absence of mind, alongside the most intense and
comprehensive presence of mind . . . the most hostile and hence most

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personal action against individuals along with a completely indifferent
or even benevolent attitude toward them as individuals . . .

(PR §328)

In the modern army the expression of valour appears more mechanical than it
does in other ways of risking one’s life: it is ‘not so much the deed of a particular
person as that of a member of a whole . . . directed not against individual persons,
but against a hostile whole in general’ (PR §328

Hegel wishes to reveal what Kant denies: the ties that bind the republicanism

he endorses to the nationalism he opposes. Hegel was clearly referring to Kant
when he wrote that ‘perpetual peace is often demanded as an ideal to which
mankind should approximate’ and that a ‘league of sovereigns’ is proposed to settle
disputes between states (PR §324

). Hegel responds that even when modern states

combine in a voluntary federation, the outcome does not necessarily have
anything to do with peace. The nexus between modern states and war is not so
easily broken. Hegel writes:

Kant proposed a league of sovereigns to settle disputes between states,
and the Holy Alliance was meant to be an institution more or less of
this kind. But the state is an individual and negation is an essential
component of individuality. Thus even if a number of states join together
as a family, this league in its individuality must generate opposition and
create an enemy.

(PR §324

)

From the point of view of the state Hegel argues that the beneﬁts and costs of war
are not so easily counted as Kant assumes:

Successful wars have averted internal unrest and consolidated the inter-
nal power of the state . . . Not only do peoples emerge from wars with
added strength, but nations troubled by civil dissension gain internal
peace as a result of wars with their external enemies. Admittedly, war
makes property insecure, but this real insecurity is no more than a neces-
sary movement . . . wars will occur whenever they lie in the nature of the
case. . . . In peace, the bounds of civil life are extended, all its spheres
become ﬁrmly established, and in the long run people become stuck in
their ways. Their particular characteristics become increasingly rigid
and ossiﬁed . . . the result is death . . .

(PR §§324

and

)

Hegel’s pronouncements about the ‘ethical’ significance of war and peace are
usually interpreted as an advocacy of war and distrust of peace, and judged
accordingly. They are read as if they were statements of Hegel’s belief that

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unrelieved peace is bad, because it leads to social stagnation, and that war is good
because it stirs things up and injects health into the body politic; or that peace
fosters individualism and exclusive concern with private enrichment and security,
while war has the advantage of putting a higher aim before us – the good of
the community as a whole (see e.g. Walsh 1998: 50–1). But if we treat Hegel’s
own opinion with the indifference he demands, we ﬁnd in the Philosophy of Right
not an advocacy of war but the beginnings – perhaps no more – of a far more
interesting analysis of the relation between war and the modern state.

Hegel points out that in the modern state, even as Kant conceives it, responsi-

bility for the command of the armed forces and for making war and peace lies with
the ‘sovereign’ – the supreme commander. Normally the consent of parliament
or other representative institutions is required, particularly in relation to the
provision of ﬁnancial means, and Hegel observes that in England no unpopular
war could be waged. However, he argues that, far from the consent of the people
being a guarantee against rash and intemperate wars, whole nations are often
more prone to enthusiasms and more subject to passion than their rulers. Hegel
illustrates the point with the observation that in England ‘the entire people has
pressed for war on several occasions and has in a sense compelled the ministers
to wage it . . . Only later when emotions had cooled, did people realise that the
war was useless and unnecessary and that it had been entered into without
calculating the cost’ (PR §329

). Whatever the truth of this concrete historical

example – Hegel was referring to the wars of coalition waged against France
‘by’ William Pitt the Younger – the point remains that ‘republicanism’ may be no
less bellicose than other forms of rule. The question is at least open and subject
to further inquiry.

In any event, if perpetual peace is an abstract ideal which Kant derives from

the postulates of practical reason, republicanism introduces another principle –
namely that the people themselves should determine what the relation of their
state to other states ought to be. They may determine that perpetual peace is of
supreme value, but they may not – particularly if the condition which perpetual
peace consolidates is seen as an unjust condition or one which confirms an
inequality in the international division of power. Kant argues that ‘reason . . .
absolutely condemns war’ and sees the achievement of peace as an ‘immediate
duty’ (KPW 104), but for Kant this is ultimately not an empirical judgement based
on the horrors of war, or on the burdens of debt to which it gives rise, or on the
loss of liberty that ensues for the vanquished, or on the moral decline that ensues
for the victors. Perpetual peace is presented rather as an a priori deduction from
the postulates of practical reason. First, in its form this categorical imperative
is lacking inasmuch as it has no deliberative dimension in its own constitution;
Kant instructs rulers and people in what they must do but does not involve them
in the process of deciding what must or must not be done. His idea of reason takes
the form of legislative prescriptions that ultimately pay no heed to the lessons
of experience or to the consequences of following a certain course of action.
Second, in its content Kant’s categorical imperative is also lacking because it fails

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to relativise perpetual peace in relation to other demands of ‘international right’.
He takes it as read that the primary evil is war and that the primary goal is peace,
and that the other issues which are at stake in people’s lives – questions of justice,
poverty, famine, inequality, etc. – are subordinate to that of perpetual peace.
It tells people that perpetual peace must be their highest priority and it treats
the positing of alternative ends as a sign of unreason. In short, the identiﬁcation
of cosmopolitanism with perpetual peace offers a restrictive and ultimately rather
conservative view of what is involved in the development of a cosmopolitan
consciousness.

Kant treats states as if they are private persons who relate to one another on

the basis of private right and morality. But the question Hegel raises is in what
sense are states ‘like’ private individuals. He argues that the position of private
persons in relation to civil society – that they are subject to the authority of a court
which establishes and implements what is right in itself – does not apply in the
same way to states. When it comes to relations between states, there is no power
present to decide what is right in itself or to actualise such decisions. Every state
is a sovereign and independent entity in relation to other states, and the legitimacy
of the state is treated as a purely internal matter based on the principle that
no state should interfere in the internal affairs of another. However, the state
cannot be a subject of right without relations to other states, any more than an
individual can be a person without a relation to other individuals. It is essential,
therefore, that its legitimacy is supplemented by recognition on the part of other
states. But ‘this recognition requires a guarantee that the state will likewise
recognise those other states which are supposed to recognise it’, i.e. that it will
respect their independence. Accordingly, Hegel adds, ‘these other states cannot
be indifferent to its internal affairs’ (PR §331

). Relations between states cannot

in fact be based on absolute and exclusive notions of sovereignty or on the
principle of mutual indifference to what rulers do to the people who live under
their jurisdiction. Relations between states typically take the form of a contract
or treaty and the basic principle of international law is that contracts and treaties
must be observed. But since the sovereignty of states is the principle governing
their mutual relations, they exist in a state of nature in relation to one another
and their rights are actualised not in a universal will with constitutional powers
over them, but in their own particular wills. There is in other words no ‘praetor’
to adjudicate between them. At most there are arbitrators or mediators. On to this
situation Kant sought to impose the idea of a federation or league of nations which
would settle all disputes and resolves all disagreements without the use of force,
but Hegel argues that such a federation presupposes an agreement between states
which is dependent on their particular sovereign wills; if no agreement is reached,
then conﬂict between states may only be settled by war – and there is plenty of
scope for a particular state to feel that it has suffered an injury, that this injury
represents a danger from another state, and that its own welfare is at stake. In
short, Hegel argues that, by identifying political states with private individuals,
Kant downplays the actual nexus between war and the modern state.

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If war does break out, a condition which Hegel describes as one of ‘rightlessness,

force and contingency’, the force of international law is to declare that states
must continue to recognise one another reciprocally as states: they must wage war
in such a way as to preserve the possibility of peace; they must ﬁght in a humane
manner; individuals must not confront one another in hatred; they must not wage
war on internal civic institutions or on family life or on private individuals. Hegel
was not, of course, opposed to such laws; he was not in favour of some military
free-for-all. But when Kant spoke of an opposition between morality and politics
and demanded that the latter conform to the former, Hegel described this
confusion of the state and the individual as a superﬁcial notion. He argued further
that the attachment of the state to the moral point of view might introduce into
wars between states the fanaticism that is characteristic of the moral point of view
in general when it is turned into the supreme value, and lead to the portrayal of
the enemy as an ‘inhuman monster’. As Arendt was later to conﬁrm on the basis
of experience, Hegel’s concerns were well grounded.

Methodologically, Kant could not bridge the gap between a philosophy of

history with the connotation of natural necessity and a metaphysics of morals
with the connotation of a priori right. Substantively, he could not bridge the
gap between absolute and exclusive national sovereignty on the one hand and
a cosmopolitan law which offers recognition to the rights of subjects persecuted
by their own rulers on the other, for the latter has to transgress any principle
of non-interference in the internal affairs of another nation. Historically,
Kant obfuscated relations between modern states when he wrote that they were
‘naturally’ leading to a universal cosmopolitan end. Kant’s faith, that ‘the germ
of enlightenment always survived, developing further with each revolution and
preparing the way for a subsequent higher level of improvement’, indicated
that he kept his eyes ﬁrmly on the future. In this philosophy of history, progress
toward perpetual peace could be discerned taking its course behind the backs or
over the heads of the actors themselves, and Kant maintained that the eventual
achievement of a cosmopolitan order was guaranteed ‘by no less an authority
than the great artist Nature herself’. This ‘hidden plan of nature’ may have offered
some consolation for the organised political violence of existing states, but it also
served according to Hegel to give meaning and purpose to the evils of war.

Doubtless, Kant could not foresee the abuse to which this philosophy of history

was to be put: to justify political violence on the ground that violence is required
to achieve a new world order of peace – popularised in the hoary old chestnut
beloved of totalitarian movements ‘you cannot make an omelette without breaking
eggs’. Nor could he envisage the incredible depths of inhumanity to which
humanity from time to time sinks – in the extermination of indigenous peoples
or of innocent civilians deemed to belong to the wrong race or class. He could
not appreciate the thinness of all future-oriented consolations after events
like Auschwitz and the Gulag have happened. At its limit, in the case of total
destruction caused by nuclear war, Kant could not be expected to see that the
term ‘perpetual peace’ might have another, more eerie meaning when used to refer

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to the death not only of the idea of humanity but of humanity itself. Perpetual
peace is in this case what we have when we die. Kant’s philosophy of history offers
the consolation of philosophy for the suffering of the present-day world by looking
to a future world. He says: we know terrible things are taking place but the
good news is that the laws of history are bringing them to an end. Keep your
eyes on what is to come, for the future is beautiful. When the worst that can
happen is that people are killed in war, perhaps this perspective makes a certain
sense; but when what is at issue is the fate of humankind itself, what possible
good can be distilled from the fury of destruction? By its own dialectic Kant’s
optimism is only maintained by converting unspeakable horror into the march
of reason.

The world’s court of judgement

We ﬁnd in Hegel’s critique of Kant an injunction we also ﬁnd in Arendt: look
horror in the face. Hegel’s ‘angel of history’ is different from Kant’s and perhaps
more like that immortalised by Walter Benjamin in his discussion of Klee’s
painting, the Angelus Novus:

His face is turned toward the past. Where we perceive a chain of events,
he sees one single catastrophe which keeps piling wreckage upon
wreckage, and hurls it in front of his feet. The angel would like to stay,
awaken the dead, and make whole what has been smashed. But a storm
is blowing from Paradise; it has got caught in his wings with such violence
that the angel can no longer close them. This storm irresistibly propels
him into the future to which his back is turned, while the pile of debris
before him grows skyward. This storm is what we call progress.

(Benjamin 1968: 257–8)

When Kant advances cosmopolitanism as an abstract ideal, his historicism also
leaves us with a sadness whose source is not at ﬁrst easy to discern. Benjamin puts
it thus:

The nature of this sadness stands out more clearly if one asks with whom
the adherents of historicism actually empathise. The answer is inevitable:
with the victor . . . empathy with the victor invariably beneﬁts the rulers
. . . Whoever has emerged victorious participates to this day in the
triumphal procession in which the present rulers step over those who are
lying prostate. According to traditional practice, the spoils are carried
along in the procession. They are called cultural treasures . . . they owe
their existence not only to the efforts of the great minds and talents who
have created them but also to the anonymous toil of their contem-
poraries. There is no document of civilisation which is not at the same
time a document of barbarism . . .

(Benjamin 1968: 256)

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Is Kant’s perpetual peace the ﬁnal spoils of victory? Is it the sign of a triumphal
procession of those who have emerged victorious? This is certainly not the whole
story, but it is part.

At the end of his essay ‘Is the human race continually improving?’, the second

part of ‘The Contest of the Faculties’ (1798), Kant states that humanity is ‘by its
very nature capable of constant progress and improvement without forfeiting
its strength’ (KPW 189). The cosmopolitan ideal is not conceived by him as
a ﬁxed ‘end of history’ but as a constant progress and improvement, presumably
without end. Kant makes this case more explicitly in The Critique of Pure Reason
where he states that ‘no one can or ought to decide what the highest degree
may be at which mankind may have to stop progressing, and hence how wide
a gap may still of necessity remain between the idea and its execution. For this
will depend on freedom, which can transcend any limit we care to impose’
(KPW 191). For Kant, however, this constant process was always bound to the
condition that it must be based on ‘genuine principles of right’ and accordingly
on the institutional framework which these principles of right require for their
actualisation. Within his promise of a ‘universal history’, the forms of right and
law always remain as categorical imperatives to be worked upon and within – but
not as forms which can in any sense be ‘overcome’.

Hegel argues that Kant’s inadequacy lies in his abstraction of right from need.

He enjoins us not to forget that ‘right comes into existence only because it is useful
in relation to needs’, even if we cannot stay ‘conﬁned to the merely sensuous realm’
(PR §209

). Kant was not wrong to advance a cosmopolitan ideal nor did Hegel

think he was wrong. Hegel fully acknowledged that those like Kant who have
proclaimed the perfectibility of the human race have ‘some inkling of the nature
of spirit . . . to assume a higher shape than that in which its being originally
consisted’; and that for those who reject this thought, spirit remains an ‘empty
word’ and history remains a ‘superﬁcial play of contingent . . . human aspirations
and passions’ (PR §343

). Kant was wrong only to ‘adopt a ﬁxed position – for

example, cosmopolitanism – in opposition to the concrete life of the state’ (PR
§209

). Hegel was no less committed to the ‘universal’ than was Kant. He writes,

for example:

it is part of education . . . that I am apprehended as a universal person, in
which respect all are identical. A human being counts as such because he is
a human being, not because he is a Jew, Catholic, Protestant, German,
Italian, etc. . . . this consciousness is of inﬁnite importance . . .

(PR §209)

But Hegel wishes to show that the idea of cosmopolitan right contains its own
equivocations: it is not a resolution of all prior antagonisms but a sublation of
contradictions present within the less developed forms of right. As such, it cannot
help but reproduce the violence which it also transcends. This is not to invalidate
the cosmopolitan idea but it is to recognise that its translation into a pure idea

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of reason or into an end of history takes it out of the world of human conflict,
conquest, loss and mourning of which it is part.

Cosmopolitan right is a form and shape of right within the system of right as a

whole; it is one element of the whole – a ‘ﬁnite spirit in world history’ as the old
man put it. Hegel points the way not to any denunciation of cosmopolitanism but
rather to the avoidance of a premature celebration of cosmopolitanism as justice.
Hegel offers a conceptualisation of justice that lies in its refusal to turn any form
of right into the absolute, a recognition of the perplexities of a universal law which
has to recognise the particularity of concrete and singular needs, an afﬁrmation
of a sense of incompletion which opens out to the future without rationalising the
past, an acknowledgement of the impossibility of making whole what has been
smashed, and an understanding of the ‘ceaseless turmoil of . . . passions, interests,
ends, talents and virtues, violence, wrongdoing and vices’ which mark what we
call political life (PR §340).

It is through this dialectic, Hegel writes, that the

spirit of the world produces itself in its freedom from all limits, and it is
this spirit which exercises its right – which is the highest right of all –
over ﬁnite spirits in world history as the world’s court of judgement.

(PR §340)

There is no form of right that is absolute – only world history. Kant posits the idea
of cosmopolitanism conceptually and legally – as an abstract ideal. His utopian
universalism attempts in an eschatological way to reconcile all conﬂicts through
the establishment of a new law and institution. But this ‘easy way’ (Rose 1995:
115) forgets the limitations inherent in any such juridical exercise.

Hegel’s

‘ethical’ philosophy takes a more difficult way: it refuses to make any leap of
faith – be it faith in the state or faith in the cosmopolis; it refuses to stop time
by predetermining the structure of what has not yet come into being; it refuses
to establish any political code premised on unquestionable assumptions of what
is right; it warns against philosophy’s ‘pride of Sollen’ – against any imposition
by philosophy of abstract ideals or imaginary communities or progressive narra-
tives of history; it instructs us to break from the idea of ultimate breakage and
acknowledges a constant reconﬁguration of elements; it overcomes the limits of
‘what is’ in a way that confronts the indeterminate messiness, risk and violence
of political action. Ethical philosophy necessarily puts reason before power as the
author of judgement in world history. Hegel puts it thus:

it is not just the power of spirit which passes judgement in world history
– i.e. it is not the abstract and irrational necessity of a blind fate. On the
contrary, since spirit in and for itself is reason, and since the being-for-
itself of reason in spirit is knowledge, world history is the necessary
development, from the concept of the freedom of spirit alone, of the
moments of reason and hence of spirit’s self consciousness and freedom.

(PR §342)

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This is the problematique of a politics which we might call ‘critical cosmopoli-
tanism’. It was Arendt above all who recognised that its development remains the
most important political task of our age. And it is to her critical cosmopolitanism
that I now turn.

Notes

1 The key essays are collected in Reiss (1991). They are ‘Idea for a universal history from

a cosmopolitan point of view’ (1785), ‘Reviews of Herder’s Ideas on the Philosophy of the
History of Mankind’ (1784–85); ‘On the common saying “This may be true in theory
but it does not apply in practice”’ (1793), ‘Toward perpetual peace: a philosophical
sketch’ (published 1795, revised 1796), ‘International Right’ in The Metaphysics of
Morals (1797); ‘The contest of the faculties’ (1798).

2 In the section on ‘International Right’ in the Metaphysics of Justice Kant reiterated

his well-tested Hobbesian analogy. In existing external relationships with one another
states act like lawless savages in a condition ‘devoid of right’ – a condition of war.
States are bound, however, to abandon such a condition and establish a federation
of peoples in accordance with the idea of an original social contract, so that they will
protect one another against external aggression while refraining from interference in
one another’s internal disagreements. This federation must not embody a sovereign
power as in a civil constitution but only a partnership or confederation of independent
states which can be terminated at any time.

3 If the concept of la patrie inaugurated the modern conception of the ‘universal

nation’, Russia arguably proved to be its greatest twentieth-century heir when its
rulers identiﬁed the particular interests of Russia with the universal interests of the
proletariat throughout the world, and then identiﬁed the universal interests of
the proletariat with the interests of humanity. Thus for every Communist militant,
from South Africa to England, the ﬁrst duty was always to Russia and only through
Russia to the idea of humanity. This is why strategic ‘lines’ and ‘periods’ could change
with such temporal suddenness and worldwide uniformity.

4 In theory Habermas offers a somewhat restrictive justification of civil disobedience

in terms of ‘valid constitutional principles’. In Between Facts and Norms he writes:
‘These acts of nonviolent symbolic rule violation are meant as expressions of protest
against binding decisions that, their legality notwithstanding, the actors consider
illegitimate in the light of valid constitutional principles . . . The justiﬁcation of civil
disobedience relies on a dynamic understanding of the constitution as an unfinished
project . . . the constitutional state does not represent a finished structure but a . . .
fallible and revisable enterprise whose purpose is to realise the system of rights
anew in changing circumstances, that is, to interpret the system of rights better, to insti-
tutionalise it more appropriately, and to draw out its contents more radically.
This is the perspective of citizens who are actively engaged in realising the system
of rights’ (Habermas 1997: 383–4, emphasis in original). Any modern constitution is
conceived as fallible and revisable, that is, as susceptible to augmentation, but the status
of moral justifications which are not valid constitutional principles (for example,
Habermas’s own justiﬁcation of the civil disobedience practised by nuclear protesters)
remains unclear.

5 Hegel adds by way of illustration: ‘In India, ﬁve hundred men defeated twenty

thousand who were not cowards, but who simply lacked the disposition to act in close
association with others’ (PR §327

6 It seems to me that Hegel’s philosophy of right contains the deconstructive moment

within its dialectic: between the generality of the legal norm and the uniqueness of

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interpretation in any single case; between the ‘madness’ and ‘violence’ involved at the
moment of decision and the constant deferment of the problem of justice; between
the idea that ‘justice exceeds law and calculation’ and that it ‘should not serve as an
alibi for staying out of juridico-political battles’ (Derrida 1992: 28). The unstable
relation of justice to law leads Derrida on the one hand to denounce the irrespon-
sibility of prematurely declaring our own justice, for justice like democracy is always
‘to come’, and on the other hand to make the statement that ‘deconstruction is
justice’! Perhaps Richard Beardsworth inadvertently points to the limit of Derrida’s
deconstruction when he describes it as a ‘transformation of the “formal” criteria of
democracy . . . which avoids at the same time a “substantial” understanding of justice’
(Beardsworth 1998: 48). For Hegel this avoidance is precisely the problem. In the end
‘everything is substance’.

7 In his book Cosmopolis Danilo Zolo writes that ‘if it is recognised that within the

international legal order the legal equality of states is nothing more than a myth, and
if it is admitted that de facto situations and the logic of power cannot fail to inﬂuence
the normative structure of international institutions . . . then even cosmopolitanism
risks appearing no better than wishful thinking, an escape into the pure world of what
ought to be’ (Zolo 1997: 102).

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A R E N D T ’ S C R I T I C A L

C O S M O P O L I TA N I S M

Arendt and the Nuremberg debates

The juridical concept of ‘crimes against humanity’ was devised in 1945 as a supple-
ment to crimes already existing under international law, ‘war crimes’ and ‘crimes
against peace’, and was instituted by the Allied Powers at Nuremberg to address
the atrocities committed by the Nazis against Jews, Roma and many other
innocent civilians. To Arendt’s friend, Karl Jaspers, the institution of ‘crimes
against humanity’ marked the dawn of a new cosmopolitan order in which
individuals, as well as states, would be held accountable to international law.
Individuals acting within the legality of their own state would be tried as criminals.
Service to the state would no longer exonerate any official in any bureaucracy
or any scientist in any laboratory from his or her responsibilities as a thinking
individual. Subordinates would no longer be able to hide behind the excuse of
‘only obeying orders’ and superordinates who sit behind desks planning atrocities
would be as guilty as those who participated directly in their execution. Atrocities
committed against one set of people (be it Jews or Poles or Roma) would hence-
forth be seen an affront not only to these people but to humanity as a whole.

In The Question of German Guilt (Jaspers 1961, written 1945) Jaspers offered

the quintessential cosmopolitan justification of the trials. He stressed the
importance of prosecuting war criminals as an element in the more general
re-evaluation of responsibility after Nazism. He argued that the trials provided
a rational alternative to all collective forms of punishment, undercut a principle
of national sovereignty which put a ‘halo around heads of states’ and made
them inviolable to prosecution, extended the notion of guilt beyond that of
mere war guilt, and made a necessary and valid distinction between those who
were criminally guilty and the indeﬁnite number of others capable of co-operating
under orders. The treatment of mass murderers as mere criminals represented them,
as he put it, in ‘their total banality’ and deprived them of that ‘streak of satanic
greatness’ with which they might otherwise have been endowed. Jaspers resolutely
rejected the various apologies and excuses invoked by the Nazi defendants as
amounting only to an evasion of responsibility.

Jaspers addressed the question of German guilt as part of a larger investigation

into a new organisation of human responsibilities: a political responsibility for

151

how we are ruled, a moral responsibility for confronting the countless tiny acts
of indifference’ which make injustice possible, and a metaphysical responsibility
for all ‘the crimes that are committed in their presence and with their knowledge’.
Jaspers’s aim was not only to reorient the ‘pariah nation’ (Germany) back to the
tradition of western humanism but to renew the tradition of western humanism
itself. He acknowledged the legal defects of Nuremberg but what was more
important was how it looked to the future. He described it as ‘a feeble, ambiguous
harbinger of a world order the need of which mankind is beginning to feel’ and
maintained that

the trial as a new attempt on behalf of order in the world does not grow
meaningless if it cannot yet be based on a legal world order but must still
halt within a political framework . . . The world order is not at hand . . .
but it has come to seem possible to thinking humanity; it has appeared
on the horizon as a barely perceptible dawn.

(Jaspers 1961: 60)

At Nuremberg Jaspers saw the spirit of Kant and the eighteenth-century vision of
cosmopolitan law coming to life. Kant had written that at the dawn of modernity
‘each state saw its own majesty in not having to submit to any external legal
constraint and the glory of its ruler consisted in his power to order the death of
thousands of its people for causes which did not at all concern them’ (Kant 1991:
103). Kant’s hope and expectation, however, was that states would eventually
abandon this ‘lawless state of savagery’ and introduce in its place a cosmopolitan
system of justice based on the recognition that the peoples of the earth have
‘entered in varying degrees into a universal community where a violation of rights
in one part of the world is felt everywhere’ (Kant 1991: 104–5). To Jaspers it
seemed that the institution of crimes against humanity at Nuremberg transformed
the idea of ‘humanity’ from a regulative idea into a substantial reality.

Arendt also welcomed the Nuremberg trials but both in her letters to Jaspers

and in her own work she stressed the inadequacy of a merely legal response to the
phenomenon in question. She emphasised the difference between mere criminality
and mass extermination – between ‘a man who sets out to murder his old aunt’
and ‘people who without considering the economic usefulness of their actions at
all . . . built factories to produce corpses’ (A&J 69). There was something about
the latter which seemed to ‘explode the limits of the law and shatter all legal
systems’ (A&J 54). She pointed to the disproportion between the few Nazis who
were prosecuted and punished at Nuremberg and the vast number of perpetrators
who committed the deeds in question. When the machinery of mass murder forces
practically everyone in a society to participate in one way or another, ‘the human
need for justice can ﬁnd no satisfactory reply to the total mobilisation of a people
to that purpose. Where all are guilty, nobody in the last analysis can be judged’
(EU 126). The effacement of visible signs of distinction between the guilty and
the innocent – through a policy of making each individual dependent upon

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committing crimes or being complicit in them or at least appearing to be complicit
– seemed to mark the limit of legal responsibility. And what role could the law
have when perpetrators present themselves as if they were cogs in the mass murder
machine and claim they do the job of killing ‘only in a professional capacity,
without passion or ill will’. For this ‘modern type of man’, conventional notions
of legal responsibility seemed to have little purchase. In Origins she summed up
her doubts thus: ‘We attempt to classify as criminal a thing which, as we all feel,
no such category was ever intended to cover. What meaning has the concept of
murder when we are confronted with the mass production of corpses’? (OT 441).

Schmitt and Heidegger

The speciﬁc nature of Arendt’s doubts may be illuminated by contrasting them
with the objections to the trials raised by the Nazi defendants and their repre-
sentatives at Nuremberg in their effort to challenge the proceedings. This attitude
was thematised by the political theorist (and one-time Nuremberg detainee), Carl
Schmitt, when he wrote of the trials:

Genocide, the murder of peoples – a touching concept; I have experi-
enced an example of it myself: the extermination of the German–Prussian
civil service in 1945 . . . There are crimes against humanity and crimes
for humanity. Crimes against humanity are committed by the Germans.
Crimes for humanity are perpetrated on the Germans.

(quoted in Habermas 1998)

Schmitt employed the contemptuous formula ‘Humanity, Bestiality’ to designate
what he saw as the sheer hypocrisy of cosmopolitan law. He argued either that
‘humanity as such cannot wage war’ because ‘the concept of humanity excludes
the concept of the enemy’ (Schmitt 1996: 74), or if it does wage war, then
‘humanity’ turns the enemy into ‘an inhuman monster that must not only be
repulsed but must be totally annihilated’ (Schmitt 1996: 36; cited in Habermas
1998: 198). The voice of Schmitt was later echoed in a comment made by Adolf
Eichmann’s lawyer concerning ‘acts for which you are decorated if you win and
go to the gallows if you lose’.

The trials themselves were faulted. The court was not international but rather

enacted by the four victorious military powers. Its laws were applied only to the
vanquished and all crimes committed by the victors were in principle excluded.
The concept of ‘crimes against humanity’ may have violated the legal principle of
speciﬁcity by containing vague phrases like ‘other inhumane acts’. The principle
of generality was arguably violated by the fact that they excluded crimes com-
mitted by the allies, and the principle of nullum crimen sine lege (no crime without
law) was arguably violated by applying the retrospective application of the new
offence to crimes committed before the law was passed. The actions designated as
crimes against humanity were represented by defendants as normal routines of

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international politics as evidenced in the behaviour of the imperial powers to
subject peoples in the colonies.

Arendt recognised that these arguments were self-

serving and were certainly ‘evasions of responsibility’, as Jaspers put it, but they
also revealed a measure of truth about the limits of this legal process.

A similar attitude to that taken by Schmitt was evident in the responses of the

one-time Nazi philosopher, Martin Heidegger. Called upon by Herbert Marcuse
to disavow the Nazi regime, Heidegger resorted to a version of the ‘normalisation’
defence, i.e. what the Nazis did to the Jews was no worse than what the Russians
did to the Germans.

In a lecture entitled ‘Con-figuration’ he stretched the

normalisation argument further when he stated that the ‘manufacture of corpses
in gas chambers and extermination camps’ deserves no more attention than
other practices of modern technology, like ‘a motorised food-industry’, and are
‘in essence – the same’.

In a lecture entitled ‘The Danger’ he compared ‘those

who were liquidated inconspicuously in extermination camps’ with ‘the millions
of impoverished people right now . . . perishing from hunger in China’ and
distinguished only between those who are ‘capable of enduring death in its essence’
and those who merely ‘succumb’ and are ‘done in’.

Such responses were doubtless deliberately provocative, but Heidegger’s Letter

on Humanism, written in the fall of 1946, took the critique of humanism beyond
these rather narrow limits. Heidegger’s basic argument was that the consciousness
that establishes ‘humanity’ as a standard against which to measure the violence
of the age, conceals the fact that the principle of humanity allows us in the ﬁrst
place to elevate the human as the master of all things and cast the Other as
inhuman, subhuman or a threat to humanity. According to Heidegger, Nazism
proved to be a catastrophe only because it lost sight of its original opposition to
western humanism – that it does not set ‘the humanitas of man high enough’ – and
turned it instead into a ‘defence of the inhuman’. He argued that the regression
of Nazism made it all the more urgent ‘to think the humanity of homo humanus
. . . without humanism’ (Heidegger 1976: 254; cited in Leaman 1997: 57–69).
He said that he was not against laws that ‘secure the existing bonds even if they
hold human beings together ever so tenuously’, and that he did not deny the need
for ‘rules . . . fabricated by human reason’; but his emphasis was on something
more essential than any positive laws (Heidegger 1976: 255, 262; cited in Leaman
1997: 57–69). The ‘higher call’ was to overcome the will to power that marks the
humanist tradition and assume in its place an attitude of ‘guardianship and care
in the clearing of Being’. We must learn to ‘let beings be’ and to ‘will not to will’
(Heidegger 1976: 250; cited in Leaman 1997: 57–69).

Arendt saw in Schmitt and Heidegger’s anti-humanism an echo of the ‘spiritless

radicalism’ which had fed into totalitarian movements in the first place. Both
arguments were in that same sense ‘justiﬁed’ and both illuminate the ground on
which the attack on the idea of humanity was based. For Arendt, however, they
were evidence that the legal category of ‘crimes against humanity’ was well chosen
inasmuch as it caught the nature of the totalitarian project once the latter was
stripped of its ‘pretexts’.

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The Eichmann trial

Arendt re-engaged with these issues in her account of the trial of Adolf Eichmann,
Eichmann in Jerusalem (1960). By this time the cosmopolitan precedent set by
Nuremberg had largely evaporated, international consensus had collapsed, cold
war prevailed and the promise of a new cosmopolitan order was deeply distorted
by nationalistic and other power-political ends. It is not true, as some critics have
claimed, that Arendt was opposed to the trial. On the contrary, she upheld both
its legitimacy and necessity in some hard-headed responses to the reservations now
put forward by Karl Jaspers. She argued that the fact that Eichmann had been
illegally kidnapped from Argentina was justiﬁable given that he had been indicted
at Nuremberg, charged with crimes against humanity and was hiding in a country
with such a bad record of extradition as Argentina. She argued that the use of an
Israeli national court was justiﬁed in the absence of an international criminal court
or a successor court to Nuremberg and in light of the fact that Eichmann’s job
was to organise the transportation of Jews. She argued that the contention that
there were more important issues at stake than the trial of a single individual –
the political character of modern anti-Semitism, the origins of totalitarianism, the
nature of evil, etc. – was no reason not to seek justice in this particular case (A&J
419). She showed no compunction about the imposition of the death penalty: ‘no
member of the human race can be expected to want to share the earth’, she wrote,
with a man who ‘supported and carried out a policy of not wanting to share the
earth with the Jewish people and the people of a number of other nations’.

She also acknowledged the positive political effects generated by the trial: not
least, after years of relative silence in the West, it publicised the facts of the Final
Solution and opened it up as a ﬁeld of moral, political and historical discussion.
Indeed, most of Arendt’s own text was devoted to a detailed account of what
actually happened in the course of the ‘Final Solution’.

The trial was for Arendt living proof that the idea of ‘humanity’ could once

again be made concrete. However, she attacked what she saw as deformations of
its cosmopolitan promise. She criticised the prosecution for its deference to Israeli
nationalist aims, giving support to the contention that a Jew could be safe only in
Israel, attempting to camouflage the existence of ethnic distinctions in Israeli
society, attempting to conceal or downplay the co-operation of some Jewish leaders
in the execution of the Final Solution, and most of all for its failure to under-
stand that ‘the supreme crime it was confronted with, the physical extermination
of the Jewish people, was a crime against humanity perpetrated on the body of the
Jewish people, and that only the choice of victims, not the nature of the crime,
could be derived from the long history of Jew-hatred and antisemitism’. Arendt
expressed a growing sense of lost opportunity: that the precedent set by Nuremberg
was being ignored in the era of the cold war, that the universalistic import of crimes
against humanity was being corralled back into a nationalist frame of reference,
and that the ethical significance of totalitarian terror was being sacrificed to
a moral division of the world between them and us, the evil and the good, which

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would serve only as an index of a world purged of all political profundity. Writing
about the later trial of the ‘butcher of Lyons’, Klaus Barbie, Alain Finkielkraut
captures the spirit of Arendt’s criticisms when he speaks of the tendency to reduce
the Holocaust to ‘an exultant face to face confrontation between Innocence and
the Unspeakable Beast’ and to rewrite it as a ‘meaningless idiot’s tale’ which
signiﬁes nothing and leaves only a ‘gaping black hole’ (Finkielkraut 1992: 60–1).

It is well known that Arendt’s criticisms provoked furious counter-criticism.

Some of it was directed against her judgement that the actions of the Jewish
leadership in the occupied countries represented ‘the darkest chapter of the whole
dark story’ and was evidence of ‘the totality of the moral collapse the Nazis caused
in respectable European society’ (EJ 117 and 125). Gershom Scholem denied
the right to make such judgements on the ground that those who collaborated
were ‘compelled to make terrible decisions in circumstances that we cannot even
begin to reproduce or reconstruct. I do not know whether they were right or wrong.
Nor do I presume to judge. I was not there’ (quoted in Beiner 1989: 99). To this
criticism Arendt replied: ‘we shall only come to terms with this past if we begin to judge
and to be frank about it’ (quoted in Beiner 1989: 100). Elsewhere she writes: ‘The
argument that we cannot judge if were not present and involved ourselves seems
to convince everyone . . . although if it were true, neither the administration of
justice nor the writing of history would ever be possible’ (EJ 295). The key point
concerns less Arendt’s particular judgement on Jewish leaders in the ghettos
– they responded perhaps in ways that are not dissimilar to the responses of any
other conservative leadership confronted by overwhelming force – but in the
requirement that a cosmopolitan politics face up to the actions and responsibilities
of the victims as well as the victimisers.

The area that provoked the most criticism concerned Arendt’s reflections

on the question of evil. Arendt was accused of trivialising the Holocaust through
the use of the term ‘banality of evil’ to characterise Eichmann’s offence. Letters
sent by Gershom Scholem offer a mild example of the diatribes levelled against
her. He writes:

your thesis concerning the ‘banality of evil’ . . . underlies your entire
argument. This new thesis strikes me as a catchword; it does not impress
me, certainly, as the product of profound analysis – an analysis such as
you give us so convincingly . . . in your book on totalitarianism. At
that time you had not yet made your discovery . . . that evil is banal.
Of that ‘radical evil’ to which your then analysis bore such eloquent
and erudite witness, nothing remains but this slogan . . .

(Arendt 1978a: 245)

Arendt replied to Scholem thus:

You are quite right: I changed my mind and do no longer speak of ‘radical
evil’ . . . It is indeed my opinion now that evil is never ‘radical’, that it

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is only extreme, and that it possesses neither depth nor any demonic
dimension. It can overgrow and lay waste the whole world precisely
because it spreads like a fungus on the surface. It is ‘thought-defying’
. . . because thought tries to reach some depth, to go to the roots, and
the moment it concerns itself with evil, it is frustrated because there
is nothing. That is its ‘banality’. Only the good has depth and can be
radical.

(Arendt 1978a: 250–1; cited in Bernstein 1996: 138)

The charge laid against Arendt, that her use of the term ‘banality of evil’ trivialised
the Final Solution, was not true. Nothing could be plainer than that Arendt, no
less than her critics, treated the Final Solution not just as ‘another event’ but as
the pivotal event that separated the nineteenth century from the twentieth (BPF
ch. 1 passim). It was for her the sign that something new had arisen in the world
and that new concepts and categories were required to grasp it.

Radical and banal evil

I can see three reasons for the appropriateness of her use of the term ‘banality of
evil’ in this context. First, at an empirical level she saw it as an accurate repre-
sentation of Eichmann’s own ‘thoughtlessness’ as a representative ﬁgure. His case
seemed to reveal that the perpetrators of totalitarian terror can be pedestrian
individuals, incapable of critical reﬂection or serious moral judgement, stuck in
everyday concerns. She saw no evidence that Eichmann was even a convinced
antisemite or that he had any motives beyond looking out for the advancement
of his own career. One lesson Arendt took from Jerusalem was that such ‘remote-
ness from reality’ as Eichmann displayed can ‘wreak more havoc than all the evil
instincts taken together’ (EJ 288). Although his deeds were ‘monstrous’, the
doer was ‘ordinary, commonplace, and neither demonic nor monstrous’ (EJ 3–4).
Arendt’s judgement was based mainly on Eichmann’s words and actions in the
courtroom and on the evidence provided in the court. Of course, it is subject
to modification in the light of further evidence concerning his conduct at the
time he had power.

Second, Arendt used the term ‘banality of evil’ to highlight the fact that leading

perpetrators of terror could be ‘men like ourselves’ who demonstrate only what
ordinary human beings are capable of under extreme circumstances. It was a
rejoinder to the image of a Nazi monster that has nothing to do with people like
ourselves and to ways of thinking which paint the world in terms of a dichotomy
between our own absolute innocence on the one hand and the unspeakable
Nazi beast on the other. It expresses a refusal in other words to dehumanise the
perpetrators as a response to their dehumanisation of their victims.

Third, and in my view most importantly, Arendt had written in Origins of

Totalitarianism of the ‘appearance of radical evil’ (my emphasis) because the wrong
committed against Jews and other victims of the Holocaust seemed lacking in any

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recognisable human motive. She sought to express the fact that ‘evil has proved
to be more radical than expected’ and that our ways of thinking are inadequate in
relation to the phenomenon itself. She wrote that

it is inherent in our entire philosophical tradition that we cannot
conceive of a ‘radical evil’ and that even Kant, the philosopher who
coined the term ‘radical evil’, rationalised it as a form of ‘perverted ill
will’ and explained it in terms of thoroughly comprehensible motives.

(OT 459)

In The Human Condition she deﬁned ‘radical evil’ as evil which can ‘no longer be
understood and explained by the evil motives of self-interest, greed, covetousness,
resentment, lust for power, and cowardice’ or with any ‘such humanly under-
standable sinful motives’ (HC 241). It was to this end that she contrasted the
evil committed by the SA ‘brown-shirts’, behind whose ‘blind bestiality . . . there
often lay a deep hatred and resentment of all those who were socially, intellectually
and physically better off than themselves’, with the lack of any humanly
recognisable motives manifested by ‘desk murderers’ like Eichmann. Radical evil,
in her view, is a form of evil in which conventional motives are lacking and the
deeds are done without personal rancour. Arendt wanted to stress the political
character of radical evil: that the perpetrators committed atrocities as elements
of a system in which all human beings appear equally superfluous, including in
the end the perpetrators themselves. In such a system conventional motives
for murdering and tormenting other human beings may exist but are superﬂuous
to requirements.

The substance of Arendt’s analysis barely changed from her early use of the term

‘radical evil’ to her later use of the term ‘banality of evil’, which she unconsciously
drew from her earlier correspondence with Jaspers (cf. Bernstein 1996: ch. 7).
Her shift of terminology emphasised that it was necessary to demythologise the
perpetrators of the Holocaust and not to endow them with any ‘streak of Satanic
greatness’. Her use of the concept ‘banality of evil’ also expressed the fact that the
task of destruction requires ‘no depth’. Killing people is relatively easy. It needs
no elaborate organisation or technology. It leaves few traces. It offers a substitute
for grand dreams of a thousand-year Reich – a simulacrum of power which manifests
itself only in unlimited violence against defenceless victims. This is what I take
Arendt to mean when she says that evil can never be radical and that only the
good has depth.

However, to understand the signiﬁcance both of Arendt’s shift of terminology

and of the criticism it engendered, we have to look further at the context in which
it occurred. The Eichmann trial was an event that succeeded in ‘breaking the
silence’ which had often submerged the memory of the Final Solution in the 1950s:
a silence that had made it so difﬁcult for survivors of the camps like Primo Levi
to have their memoirs published, a silence that was experienced by survivors
as a refusal to listen to or believe their stories. Arendt herself had played

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a major part in resisting this silence and her account not only of the trial but
also of the history behind the trial continued to push the facts of the catastrophe
to the fore. She insisted on the need to face up to the burden of this event and to
construct new categories and standards to comprehend it. The term ‘totalitarian
terror’ was the generalising concept she used to get to grips with an apparently
senseless phenomenon, the ‘manufacture of corpses’ without utility, which had
taken place on a huge scale in both Stalinist Russia and Nazi Germany.

In the wake of the Eichmann trial, however, there was emerging a new

discourse: one which drew the concepts of the Holocaust and Shoah from Jewish
theology; which represented the Holocaust as an ‘event’ beyond all human
understanding – as something unique, singular, ineffable, unrepresentable and
incomparable. Elie Wiesel put the perspective most clearly and succinctly when
he urged his readers not to treat the Holocaust as if it were ‘just another event’
that we can ‘understand’:

Whether culmination or aberration of history, the Holocaust transcends
history . . . The dead are in possession of a secret that we, the living, are
neither worthy of nor capable of recovering . . . The Holocaust? The
ultimate event, the ultimate mystery, never to be comprehended or
transmitted.

(Roth and Berenbaum 1989: 2)

In a thought-experiment conducted some thirty years after Arendt wrote
Origins of Totalitarianism, Jean-François Lyotard drew an analogy between the
Holocaust and an earthquake so catastrophic as to ‘destroy not only lives, build-
ings, and objects but also the instruments used to measure earthquakes directly
and indirectly’ (Lyotard 1988: 56). Lyotard imagined a situation in which not
only vast numbers of Jews, Gypsies and other innocent victims are exterminated
but the means to prove that this happened are also exterminated. If there are
no indicators of the existence of the Holocaust that survive, if all documents
have been destroyed, if there is nothing to preserve memory from oblivion,
if surviving victims are themselves condemned to silence, if the authority of
the tribunal supposed to establish the crime is discredited on the ground that the
judge is ‘merely a criminal more fortunate than the defendant in war’ – if all
this were true, then he concluded, Auschwitz would not be an historical event
in the normal sense of the term nor would it be subject to the normal procedures
of historical investigation: ‘the name of “Auschwitz” marks the conﬁnes wherein
historical knowledge sees its competence impugned’. For Lyotard, this was not
of course to deny the reality of ‘Auschwitz’; on the contrary, it was to afﬁrm it as
‘the most real of all realities’. As he put it, ‘the impossibility of quantitatively
measuring it does not prohibit but rather inspires in the minds of the survivors
the idea of a very great seismic force’. But it signified that we have or should
have a relation to ‘Auschwitz’ different from one of historical understanding, a
relation that exceeds understanding, that puts out of play not only the claims

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of the ‘Hegelian’ or ‘Marxist’ dialectic but the validity claims of all theoretical
discourse, a relation that is essentially ethical rather than social, a relation he calls
the differend.

The ground for Lyotard’s claim about ‘Auschwitz’ is not, as one might anticipate,

its extreme horror but the destruction of what would render an account of what
happened there determinate: namely, the voices of the victims and the signs of their
extermination. The ultimate victims, the ‘drowned’, cannot testify to their murder
and make their genocide determinate. No historical account of their slaughter
can adequately account for what happened to them. The status of ‘Auschwitz’ is
rather as the omnitemporal archetype of evil. What, after all, could be more evil
than this?

Arendt too speculated on the possibility of a catastrophe so consuming

as to destroy all our categories of thought, all our standards of judgement, and
therefore our capacity for understanding itself: ‘how can we measure length if
we do not have a yardstick, how could we count things without the notion of
numbers?’ The Holocaust might have been like this if the voice of resistance
had been silenced, if the endeavour to exterminate Jews had been carried to a
successful conclusion, if the yardsticks which make possible human understanding,
including the idea of humanity itself, had been destroyed. But for Arendt this
thought-experiment was counterfactual: it highlighted not so much the limitations
of human understanding as ‘the necessary limitations to an experiment which
requires global control in order to show conclusive results’ (OT 459). We
can certainly envisage the spectre of a catastrophe so terrible as to exterminate
the possibility of ‘knowing’ the catastrophe itself – a nuclear holocaust, perhaps,
which leaves behind no survivors, no witnesses, no traces, nothing human.
However, after Auschwitz there was no shortage of signs, traces, documents or
testimonies.

It was Arendt’s refusal to ‘singularise’ the Final Solution, to isolate it from the

wider phenomena of totalitarian terror, and her seeming reluctance to use the term
‘Holocaust’, that was her special offence from the standpoint of what Gillian Rose
has called ‘Holocaust piety’.

It was because she retained a secular, historical and

political approach to the question of evil that she was so vehemently attacked. The
terms ‘radical evil’ and ‘banality of evil’ became charged because they were emblems
of this conﬂict. In a context in which human rights could no longer be entrusted
to nation-states, nor to international bodies which operated in terms of reciprocal
agreements between nation-states, least of all to supra-national movements which
transcended the parochialism of the nation-state in pursuit of a global ambition,
Arendt reafﬁrmed the need for ‘new guarantees’ of human rights whose ‘validity . .
. must comprehend the whole of humanity and whose power must remain strictly
limited, rooted and controlled by newly deﬁned territorial entities’. This required
a ‘new political principle’ and ‘new law on earth’ which were only just coming into
evidence (OT ix). This essentially cosmopolitan perspective could not be contained
in any idea of the uniqueness or sacredness of the Holocaust.

In thinking about the limits of totalitarianism, we may want to believe that

there is something about the human condition – some capacity for ‘beginning’,

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some individual particularity, some voice of conscience, some sense of judgement
– that cannot be reworked or destroyed according to plan. The text of Origins
is punctuated by Arendt’s attempts to find this ‘something’ that resists all
transformation. In a world where lives were ‘superﬂuous’ and the notion ‘I want
you not to be’ prevailed, she looked primarily among the victims, pariah peoples,
stateless refugees to ﬁnd those who would afﬁrm ‘the grace of love, which says with
Augustine . . . “I want you to be” without being able to give any particular reason
for such supreme and unsurpassable affirmation’ (OT 301). In a world which
suppressed uniqueness and portrayed difference as alien, she looked to those who
would recognise ‘the fact of difference as such and the disturbing miracle contained
in the fact that each of us is made as he is – single, unique, unchangeable’ (OT
300). In a world where spontaneity was denied, she looked to the capacity of
human beings for creative action: ‘“that a beginning be made man was created”,
said Augustine’ (OT 478–9). In a world in which friendship was subordinated to
the duty to denounce disloyalty and inform on traitors, she looked to a conception
of friendship (philia) which makes both personal and political demands (MDT 25).
In a world where politics was equated with total domination and a single world
view, she looked to a conception of politics whose raison d’être is freedom and
whose premise is the plurality and exchange of opinions. Arendt did not idealise
the modern pariah as the cradle of such values . When civilisation forces millions
of people into conditions of savages, she recognised that it may equally well
produce new barbarians (OT 302). People who have lost the rights and protection
that nationality once gave them, often resort all the more desperately to some
form of nationalism. Communal relationships, built in the hope of preserving some
‘minimum of humanity in a world grown inhuman’, often generate a ‘worldlessness’
that is vulnerable to its own forms of barbarism (MDT 13–17). The text of
Origins is as punctuated by instances of those to whom evil is done doing evil in
return – of resistance aping or mirroring the power against which it is set – as it
is of unexpected acts of moral courage. In the end she concludes that what makes
this planet ‘a place ﬁt for human habitation’ is simply that there are always some
people who will not comply with power even under conditions of terror (EJ 233).

Arendt had no ﬁxed conception of human nature and preferred the term ‘human

condition’. In the book of that name, she writes:

The human condition is not the same as human nature and the sum total
of human activities and capabilities which correspond to the human
condition does not constitute anything like human nature . . . The
problem of human nature . . . seems unanswerable . . . It is highly unlikely
that we who can know, determine and deﬁne the natural essences of all
things surrounding us . . . should ever be able to do the same for ourselves
– this would be like jumping over our own shadows. . . . Nothing entitles
us to assume that man has a nature or essence in the same sense as other
things.

(HC 9–10)

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There is nothing deep down in human beings that guarantees resistance to
totalitarianism. It is possible that the organised attempts to ‘eradicate the concept
of the human being’ might have succeeded in the past and might still succeed
in the future; that the props of the ‘human condition’ can be cut away and that
there is no ‘human nature’ that will necessarily protect us from their destruction.
For Arendt, this was not a message of despair but of freedom. Everything depends
on us – on what we do, how we act, whether we can ﬁnd an adequate political
response. None of this can be predetermined.

The call of modern philosophy is to understand a world which now knows

Auschwitz and the Gulag and which is daily confronted by echoes of their hatred
to humanity. It is at least one way in which, as Hegel wrote, we reaffirm our
subjective freedom in the realm of the substantial. Worldliness. The word haunts
Arendt’s writings in its multiple meanings. Worldliness as a declaration of
human right beyond parochial allegiance. Worldliness as a recognition that both
reason and horror lie objectively in the world, not just in how we see the world.
Worldliness as the practical wisdom of those who by hook and crook know how
to construct a touch of humanity in the most forbidding of circumstances.
Worldliness as the satisfaction of comprehending the present and the actual, not
setting up some world beyond which exists God knows where. Worldliness as
facing up to the burden of events, not to indulge the cold draft of despair, not to
confess that things are bad but nothing better can be expected here, not to accept
what is not justiﬁed in thought.

The research programme which this word expresses picks up a political and

intellectual agenda that Hegel ﬁrst set in his critique of Kant’s critical philosophy
and Marx followed in his comment that the task of philosophy is the critique of
all existing conditions, including critique itself. It is an agenda which confronts
the central perplexity of modern political life: that the critique of representation
cannot rest content until it links hands with the critique of the critique of repre-
sentation. It is not afraid of perplexity, it does not run away from it, it does not
seek to resolve it with premature judgements and conclusions, nor does it use it
as an excuse for inaction in the face of injustice. Rather than attempt to master
perplexity and subsume it to the will of the subject, it is prepared to give it rope,
to see where it takes us. It does not deny normative judgement but it dethrones it
and puts it back from where it came: in the world where no sphere of innocence
survives and the most dangerous man is he who nonetheless proclaims his
innocence.

Notes

1 The Nuremberg Charter deﬁned ‘crimes against humanity’ in terms of certain speciﬁc

acts, namely murder, extermination, enslavement and deportation, other non-speciﬁc
‘inhumane acts’, and ‘persecutions on political, racial or religious grounds’. The
limiting factors were that these acts had to be committed against civilian populations,
they had to have some connection with war (i.e. the concept did not apply in purely
domestic situations), and they had to be carried out as part of a systematic

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governmental policy and not merely as the result of individual initiative. The Charter
upheld a strong notion of personal responsibility. Individuals were held responsible
whether or not the crime is in violation of the domestic law of the country where it is
perpetrated. According to Article Six, ‘Leaders, organisers, instigators and accom-
plices participating in the formulation or execution of a common plan or conspiracy
to commit any of the foregoing crimes are responsible for all acts performed by any
persons in execution of such plan.’ Article 7 added: ‘The ofﬁcial position of defen-
dants, whether as Heads of State or responsible ofﬁcials in Government Departments,
shall not be considered as freeing them from responsibility or mitigating punishment.’
Article 8: ‘The fact that the Defendant acted pursuant to order of his Government
or of a superior shall not free him from responsibility, but may be considered in
mitigation of punishment if the Tribunal determines that justice so requires.’ Articles
9, 10 and 11 authorised the Tribunal to declare that a particular organisation, like
the Nazi party, is criminal and that individuals who join such an organisation are
personally responsible for both their membership and their participation in its
criminal activities.

2 For further discussion, see esp. Rabinbach 1997: ch. 4 ‘The German as Pariah: Karl

Jaspers’ The Question of German Guilt’.

3 The quotation is from Carl Schmitt, Glossarium 1947–1951 (Berlin, 1991).
4 This argument was echoed in the trial of Klaus Barbie in 1987 when Barbie’s lawyers

argued that their client’s actions as police chief of Lyons during the occupation could
not be called ‘crimes against humanity’ since this was merely a case of ‘whites’ doing
to other ‘whites’ what all white Europeans have routinely done to non-Europeans
(Finkielkraut 1992). By putting Barbie on trial, they claimed that the French camou-
ﬂaged their own colonial history and scapegoated the Nazis for behaviour for which
all Europeans had been responsible. Barbie’s lawyers were the Congolese M’Bemba,
the Algerian Bouaïta, and the French–Vietnamese Vergès.

5 ‘I can only add that instead of the word “Jews” there should be the word “East

Germans” and then exactly the same holds true of one of the allies, with the difference
that everything that has happened since 1945 is public knowledge world-wide,
whereas the bloody terror of the Nazis was in fact kept a secret from the German
people’ (Heidegger, Letter to Marcuse, 20 Jan. 1948).

6 Heidegger, Das Ge-Stell, 1 December 1949 (cited in Lang 1997: 8–12).
7 Arendt read Heidegger’s philosophy as an attempt to overcome the philosophy of

the subject initiated by Kant and to reverse his destruction of the classical concept
of Being by re-establishing the ontology of Being. However, by declaring that Being
is Nothingness (What is Metaphysics), Arendt argued that Heidegger justiﬁed the arro-
gant idea that humanity stands in the same relationship to Being as the Creator stood
before the world he created ex nihilo. According to Arendt, Heidegger’s designation of
Being as nothingness brought with it the attempt to put behind us the deﬁnition
of Being as ‘what is given’ and to regard human actions as god-like, divine. Since
nothingness appears as the truly free domain of humanity, Dasein is deﬁned through
the identity of its existence and essence (i.e. we can only ask of human beings Who
but never What). Like the metaphysical view of God, Dasein becomes the ‘master
of Being’ except that this mastery cannot be realised in world-creating but only in
world-destroying. Dasein is brought back to the singular and unique self who, without
any detour via the idea of humanity, hears the ‘call of conscience from the ground of
its being’ and replaces being human with being a self in seemingly absolute isolation,
and it was only after the fact, as it were, that Heidegger drew on mythologising and
superstitious concepts like ‘volk’ and ‘earth’ to supply his isolated selves with a
common ground to stand on. Arendt presented Heidegger’s existentialism as a kind
of Weltanschauung which protects us from the real questions of our existence and gives

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us a false sense of ﬁnal results. She maintained that human existence is by its very
nature social, not isolated, and only comes into being in communication with and
awareness of the existence of others. We have to recognise that the reality of
the world, the unpredictability of our fellow human beings, and the fact that I have
not created myself provide the inescapable backdrop against which human freedom
declares itself distinct. Human freedom has nothing to do with the god-like mastery
of Being; on the contrary, it is a task of philosophy to free us from this illusion and
to recognise that reality cannot be resolved into what can be thought, that the reality
of the thinker precedes her thinking, and that the concept of human existence can
only develop in conjunction with others (EU 176–87).

8 Arendt’s views have often been confused in the secondary literature. It is not true that

she objected to the use of an Israeli court, or that she insisted that there had to be an
international court or nothing, or that she believed that the crimes Eichmann
committed were too immense to be the subject of mere legal judgement, or that she
held that Eichmann should have been executed without trial! These propositions
have been advanced by Parvikko 1998: 49.

9 Arendt’s sense of lost opportunity was echoed by Alain Finkielkraut. He analysed

contemporary trends towards the ‘banalisation’ of crimes against humanity, as it
became part of a ‘competition of memories’ between different national movements
and was extended to include all those forms of man’s inhumanity to man of which
we might disapprove. Thus in the Barbie case Finkielkraut criticised the decision of
the French court to muddy the distinction between the killing of Jews for what they
were, and the killing of resistance ﬁghters for what they did, and its decision to stretch
the concept of crimes against humanity to include both. He also criticised the attempt
on the part of Barbie’s defence team to diminish the distinction between the exter-
mination of the Jews and the violence of European colonialism. A certain ‘emotional
confusion’ arises, he argued, when on the one hand the deﬁnition of crimes against
humanity expands to include inhuman actions of every sort and on the other hand
contracts to exclude those crimes that cannot be ascribed to Western imperialism.

10 The issue of judgement is not easily resolved. Primo Levi addressed its nuances when

he wrote of the ‘grey zone’ of inmates in the camps forced into the role of functionaries
and insisted that even in the case of the worst misdeeds ‘the greatest responsibility lies
with the system, the very structure of the totalitarian state’ (Levi 1986b: 28). He
pointed out that the creation of a grey zone in which all moral certainties are confused
was the conscious aim of the Nazis and their ‘most demonic crime’ (Levi 1986b: 37).
Levi suspends judgement on the Sonderkommando, the ‘crematorium ravens’, saying
that ‘no one is authorised to judge them, not those who lived through the experience
of the Lager and even less those who did not’ (Levi 1986b: 42) and comments that
the question of the moral responsibility of more exalted functionaries who committed
acts of brutality is ‘more delicate’ and that these ‘ambiguous persons’ may be ‘rightful
owners of a quota of guilt’ (Levi 1986b: 33). He extends this argument to the
collaborationist actions of Jewish leaders in the ghettos and in his account of Chaim
Rumkowski, the President of the Lodz ghetto, though admitting the ‘extenuating
circumstances’ of totalitarian rule, he eventually assigns him to the same ‘band of half-
consciences’ who brutally served the regime of the camp (Levi 1986b: 49–50).

11 This is also a theme taken up by Primo Levi. He describes the SS as ‘ordinary men’

(Levi 1997b: 396) or as ‘average human beings . . . save for exceptions, they were
not monsters, they had our faces, but they had been reared badly . . . subjected to
a terrifying miseducation’ (Levi 1986b: 169).

12 Kant discusses what he calls the ‘radical evil in human nature’ in his Religion within

the Bounds of Mere Reason (1998), where he associates radical evil with ‘perverted
maxims’. He writes: ‘The depravity of human nature is . . . not to be named malice,

C R I T I C A L C O S M O P O L I T A N I S M

164

if we take this word in the strict sense, namely as a disposition (a subjective principle
of maxims) to incorporate evil qua evil for incentive into one’s maxim (since this is
diabolical) but should rather be named perversity of the heart, and this heart is then
called evil because of what results. An evil heart can coexist with a will which in the
abstract is good. Its origin is the frailty of human nature, in not being strong enough
to comply with its adopted principles’ (60). The term ‘radical evil’ for Kant refers only
to the ‘natural propensity’ to evil which resides in human nature by virtue of our ‘free
power of choice’. Kant illustrates what he considers to be the surrender to evil in the
modern world in a comment made by an English Member of Parliament to the effect
that ‘every man has his price, for which he sells himself’. Arendt is right in saying that
Kant’s idea of ‘radical evil’ came far short of imagining the evil that was to come.

13 I am drawing here from Jay Bernstein’s critique of Lyotard ‘After Auschwitz:

Grammar, Ethics, Trauma’ in Fine and Turner (2000).

14 In her essay on ‘Fascism and representation’, the then Jewish philosopher, Gillian

Rose, used the label ‘Holocaust piety’ to characterise this way of thinking. She writes:
‘It is this reference to the “ineffable” that I would dub “Holocaust piety”. How is it to
be construed and what is its economics? “The ineffable” is invoked by a now wide-
spread tradition of reﬂection on the Holocaust: by Adorno, by Holocaust theology,
Christian and Jewish, more recently by Lyotard, and now by Habermas. According
to this view, “Auschwitz” or “the Holocaust” are emblems for the breakdown in divine
and/or human history. The uniqueness of this break delegitimises names and narra-
tives as such, and hence all aesthetic or apprehensive representation . . . the search
for a decent response to those brutally destroyed is conﬂated with the quite different
response called for in the face of the inhuman capacity for such destruction. To argue
for silence, prayer, the banishment equally of poetry and knowledge, in short, the
witness of “ineffability”, that is, non-representability, is to mystify what we dare not
understand, because we fear that it may be all too understandable, all too continuous
with what we are – human, all too human’ (Rose 1996: 41–3). The questions Gillian
Rose raises, echo those raised by Arendt: ‘what is it that we do not want to understand?
what is it that Holocaust piety . . . once again protects us from understanding?’ (Rose
1996: 43).

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165

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abstract right 17, 28–9, 31–3, 51–2, 84,

85, 89–90, 91, 97

Adler, H.G. 120
Adorno, Theodor 17, 18–19, 99, 132, 165
American Revolution 122–3, 125, 128,

131

Améry, Jean 105–6
Apel, Karl-Otto 132
Arato, Andrew 12
Archibugi, Daniele et al. 132
Arendt, Hannah 26, 40, 145; Athenian

inspirations 101, 126–30; critical
cosmopolitanism 151–62; and critique
of representation 122–5; and
Nuremberg debates 151–3; on
totalitarianism 100–19

Aristotle 21, 58, 75
Arthur, Chris 60
Auschwitz 109, 111, 159–60, 162, 165
authority 127–9, 133
Avineri, Shlomo 11, 13, 22

Bakunin, Mikhail 115
Barbie, Klaus 156, 164
Bauman, Zygmunt 108–9, 110, 121
Beardsworth, Richard 150
Beiner, Ronald 156
Being 163–4
Bellamy, Richard 35
Benjamin, Walter 146
Bentham, Jeremy 87, 120, 133
Bernstein, Richard 119, 158
Bohman, James and Lutz-Bachmann,

Matthias 132

Bosanquet, Bernard 6
bourgeois society 80, 82–5, 93–4; double

standards/hypocrisy of 115–16

Bullock, Alan 120

Burke, Edmund 73

Calvino, Italo 1, 2
capital/labour relationship 89–91, 94
Cassirer, Ernst 6
Celine, Louis-Ferdinand 116
civil society 33; derived from

republicanism 12; development of 58;
differentiations of 29; and intervention
of the state 58–9; and poverty 59; and
representation 64–5; social
antagonisms in 14, 16, 31; as system of
social interdependence 58; as universal
133

class 83, 118, 122
Colletti, Lucio 20, 74
commodity 85, 95, 96, 99; exchange

88–91

commune 77–8
Communism 95, 105–6
concentration camps 102–4, 114, 119,

120, 152, 158

concepts 82, 92, 107, 157
the concrete 7, 34–5, 82, 83–4, 155
Cornell, Drucilla 12
cosmopolitanism 132; abstract ideal 137;

as abstract ideal 147–8; collapse of
133–4; critical 148–9, 151–62;
despotism of 137–8; ‘French’
republicanism as 137; and global
authority 133; guaranteed achievement
of 135; Hegel’s critique of Kant’s ideal
140–6; humanity ﬁrst/nation second
137; identiﬁed with perpetual peace
144; Kant’s 133–6; and legislation
144–5, 152–3; as post-nationalist
139–40; and right 148–9; and right as
postulate of practical reason 135–6

172

I N D E X

crimes against humanity 153–4, 162–3

Dasein 163
Debord, Guy 77
democracy 73–4, 122
Derrida, Jacques 150
dialectic 79–80, 81–2, 160
Dickey, Laurence 11, 60

Eichmann, Adolf 112, 155–7, 158–9, 164
Emerson, Ralph Waldo 125
empiricism 26
Engels, Friedrich 76, 79, 92, 94
ethical life 27, 36, 52, 53–9
evil 37, 40, 104, 108, 144, 155; radical/

banal 157–62, 164–5; reﬂections on
156–7

family 55–7
fanaticism 38–9, 70
Fascism 15, 120
fetishism of the subject 131; and critical

theory 96; Hegelian 34–6; Marxian
92–6

Feuerbach, Paul Johann Anselm von 76
Fichte, Johann Gottlieb 77, 138
Final Solution see Holocaust
Fine, Robert 31, 40, 120, 140
Finkielkraut, Alain 156, 164
form/content 83, 85, 86–7, 89–90, 92
Foucault, Michel 120
Fraser, Ian 81
free will 32, 37–9, 49–50, 70–1, 90, 93, 98
freedom 30, 34, 54–5, 75, 101, 148;

constitution of 127–8; Hegelian 6–7;
individual 16; limitation of 37;
negative 37–8; political 127–30; as
repeatable event 127, 129–30; and
right 19; subjective 7–8, 16; universal
73

French Revolution 19, 38, 66, 68, 70–1,

72–4, 123, 124, 125, 128, 133–4

Fries, Jacob 22, 40

Gans, Eduard 75, 77
gender equality 56–7
general will 66–7, 68–70; democratic

aspect of 69–70; as empirically general
71; and individual/society relationship
68; and intolerance towards everything
particular 70; and man/nature
relationship 68–9; and universal
equality 69

Gentile, Giovanni 35–6, 107
Gide, André 116

Habermas, Jürgen 20–3, 31, 59, 72, 123,

132, 139–40, 149

Haller, Karl Ludwig von 6–7, 10, 22
happiness 39
Hardimon, Michael 13
Haym, Rudolf 5
Hegel, Georg Wilhelm Friedrich 100,

101, 107, 124; critique of
Hegel’s cosmopolitanism 140–6;
critique of Rousseau 68–71;
equivocations and French
Revolution 72–4; false/wicked
doctrine of 6; inﬂuence on Marx
79–81; methodological afﬁnity with
Marx 81–5; similarities with Marx
96–8

Heidegger, Martin 154, 163
Heine, Heinrich 77
Held, David 132
Herder, Johann Gottfried 137–8
Heydrich, Reinhard 121
history 72–3, 82–4, 101; as basis for

utopian vision of nation-state 135–6,
145–6; and critical theory 93–4; end of
148; and logic 93–4; and relations
between state 145

Hitler, Adolph 118, 121
Hobbes, Thomas 59
Hobhouse, L.T. 6
Holocaust 108–12, 155, 156, 157, 158,

159, 160, 165

Honig, Bonnie 122, 131
Honneth, Axel 132
human agency 95–6
human condition 160–2
humanity 137, 153–4, 155, 162–3
Hyland, Richard 75, 78

idea of right, concept/existence 29; and

ethical life 29; and freedom 30; higher
dialectic 30–1; logical progression in
31–2; and morality 29; movement in
28–34

ideal/material forms 80, 82–3, 85, 97–8
Ilting, K.-H. 14
individual/ism 18–19, 141–2, 145
instrumental rationality, critique of

108–13, 121; and the Final Solution
109–12; garden metaphor 108–9;
hostility to 109–10

I N D E X

173

Jarvis, Simon 17
Jaspers, Karl 151–2, 155, 163
Jefferson, Thomas 123
Jews 7, 8, 109, 110–11, 116, 118, 119, 155,

156, 157, 164

judgement 156, 164
Junger, Ernst 115
justice 136, 152–3

Kant, Immanuel 36, 37, 38, 65, 73, 121;

cosmopolitanism of 132, 133–6;
Hegel’s critique of 140–6

Kedourie, Elie 138–9
Kirchheimer, Otto 99
Klee, Paul 146
Knox, T.M. 14
Kristeva, Julia 134, 137

Lane, Allen 121
Lang, Berel 163
Lefort, Claude 105
legislation 33; and appropriation of

property 91; Constitutional authority
128; international 144–5; justiﬁcation
of existing 9–10; sharing in 75

Lenin, V.I. 115, 117
Lessing, Gotthold 104, 119
Levi, Primo 119–20, 164
liberalism 10–11, 14, 15, 16, 107–8
love 55–7
Löwith, Karl 16
Lukacs, Georg 19, 95, 96
Luxemburg, Rosa 116
Lyotard, Jean-François 159–60

MacGregor, David 81
Machiavelli, Niccolò 127
McLellan, David 81
Mann, Thomas 15, 115
Marcuse, Herbert 16–17, 20, 154
marriage 56
Marx, Karl 59–60, 100, 101, 107, 127;

critique of Hegel 61–3; critique of
‘right’ 85–93; Hegelian inﬂuence on
79–81; limits of his politics 74–6;
methodological afﬁnity with
Hegel 81–5; similarities with Hegel
96–8

Marxism 94–6, 107
metaphysics of right 42–6; Hegel’s

argument against 46–7

Montesquieu, Charles de Secondat, Baron

123, 137

morality 36–9, 52, 53–9, 95, 145; and

rationality 111–13

Napoleonic Code 72
National Socialism 15, 121
nationalism 117–18, 134, 136; and

constitutional patriotism 139; and idea
of volk 137–8; mixed with
republicanism 138–9; and principles of
right 140–1; and rights of the people
139; as sign of personal/political
immaturity 140; universal 137

natural law 21–2, 30–1, 33, 64, 78, 123
Nazis 15–16, 105–6, 118, 151, 154, 156
needs 147–8
Neumann, Franz 15, 17, 99
Nicolaus, Martin 80, 81
Nietzsche, Friedrich 100, 113–14
nihilism 114, 116
Nisbet, H.B. 11
Nuremberg debates 151–3

objectivity 47

Paine, Tom 133, 134
patriotism 140–1
peace 135–6, 142–4, 146
personality 47–51, 60
persons/things distinction 47–50, 60, 85
philosophy 24–5, 26, 27, 101
Philosophy of Right, and critical theory

15–20; fetishism of the subject/total
state 34–6; hostile criticism of 5–6; and
idea of right 28–34; limitations of new
orthodoxy 13–15; moral point of view
36–9; and new critical theory 20–2;
new orthodoxy 10–13; old orthodoxy
5–10; understanding, politics, task of
philosophy 24–8; young Marx’s critique
61–3

Pitt the Younger, William 143
Plato 26–7, 101, 107
polis 126
political economy 85–6; classical 86; and

exchange 88–91; limitations 86–7, 92;
and private property/ownership 87–8;
strong/weak 86

political philosophy, classics of 1–2; and

freedom of choice 27; guidelines 2–3;
normative/realist approaches 20–2;
reasons for reading 2; reinterpretation
of 2; relationship with events 72;
understanding 3–4

I N D E X

174

politics 2–3, 24–8, 145; and imperialism

116–17, 118; and invisible majority
115; reactive 115–16; as space of
freedom 126, 131; and the will to
power 116

Popper, Karl 6, 17
positivism 26, 33
Postone, Moishe 93–4
private property 16, 27, 30–1, 32, 47,

51–3; appropriation of 91;
exchange relation 88–91; ownership
of 87–8

public opinion 67
pure indeterminacy 36–8

Rabinbach, Anson 163
rational law 99
rationality 102, 103, 121; as a cross 26;

double dictum 26–7; is/ought
distinction 24–5, 26, 27, 39, 148; and
morality 111–13; and obedience 109;
in the present 26; and understanding
24–5, 26, 27

representation 130; abolishment as such/of

guarantees which restrict 65–7;
authority of 64; critique of critique of
65–7, 123–5; critique of 63–5, 77,
122–3; and exclusions from political
participation 64–5; illusions of 64; as
middle term between civil society/state
65, 66; pure form of 67; and universal
assent 63

republicanism 11–12, 14, 135, 137, 143
responsibilities 151–2
revolution 4, 72–4, 76, 122–3; antinomies

in idea of 127–30; beginning as
principle of authority 127, 129;
distinguished from rebellion 127; lost
heritage of 125; political/social aspects
124–5

Ribbentrop, Joachim von 121
Riedel, Manfred 58, 78
rights 33; and afﬁrmative materialism 17;

deprived of right to 117–18;
devaluation of 6–7; equal 89–90;
equivocations/perplexities in idea of
118–19; individual/ahistorical 11,
12–13; liberal interpretation of 10–11,
14, 15; middle (third) way 12; of
property-owners 16; public/private 123;
republican aspects 12, 14; universal
conception of 8

Ritter, Karl 72

Robespierre, Maximilien Marie Isidore de

127

Roman law 48, 49, 88
Rosdolsky, Roman 80–1
Rose, Gillian 20, 165
Rousseau, Jean-Jacques 65, 74–5; critique

of 63–5

Rubin, Isaak 86, 98
Ruge, Arnold 76
Rumkowski, Chaim 164
Russell, Bertrand 6

Savigny, Friedrich Karl von 9
Schiller, Johann Christoph Friedrich von

Schlegel, Friedrich von 57
Schmidt, Anton 112
Schmitt, Carl 115, 132, 153–4
Scholem, Gershom 156
Schopenhauer, Arthur 6
science of right 24–6, 29–30, 41–2, 96
self-consciousness 37–8, 68, 95
Smith, Adam 21
Smith, Steven 12–13
social democracy 11
social theory 91–3; contemporary 136–40
Socrates 37
sovereignty 74, 138, 141, 144–5, 151
spiritless radicalism 113–19
Stahl, F.J. 76, 78
state, as an organism 14; analagous with

‘state of nature’ 134–5; as concrete
freedom 7, 34–5; destructive potencies
of 36; differentiations of 29; essential
contradiction of 35–6; étatist/social 12,
14; formation 33; intervention by
58–9; and logic of inversion 61–3, 76;
powers of 66; as rational 8–9, 11,
12–13, 15; relations between 144;
relationship with citzens 138–9, 141–2,
145; relationship with war/peace
143–5; and representation 63–5; and
right to self-determination 117;
sanctiﬁcation of 6–7, 13, 14, 17;
subjectivism of 34–5; utopian view 135

Stewart, Jon 14
Stirling, James 6
subject/object relationship 96
subjectivity 47, 54; and distinction with

subjectivism 34–5; dynamics of 24;
personality as form of 49

Taylor, Charles 19

I N D E X

175

Thompson, Edward 86, 95
totalitarianism 6, 15, 20, 35, 36, 92, 98,

155, 159, 160–1; background 100–1; as
beneﬁciary of parliamentary crisis 115;
and deﬁance of natural right/positive
law 110; difﬁculties of understanding
101–5; and eradication/obliteration of
concept of human being/humanity 113;
idea of 105–8; and instrumental
rationalty 108–13; and the leader
principle 111–12; and liberalism
107–8; and mass man 112; and means-
ends calculus 102; reformed 105;
rejection of term 105–6; as revolt
against existing order of nation-states
117–18; and spiritless radicalism
113–19; use of term 107; and violence
102–3, 145

Trotsky, Leon 120

Uchida, Hiroshi 40

understanding 24–5, 26, 27, 101–5;

activity of 104–5

universal 147

value/use-value 85, 91, 97
Vatter, Miguel 127, 129–30, 131
violence 131, 135, 145, 164

Waldron, Jeremy 60
war 114–15, 135, 136, 142–6
Warminski, Andrzej 76
Weber, Max 109, 111
Wilberforce, William 133
Wilson, Woodrow 117
Wolin, Sheldon 131
Wollstonecraft, Mary 133
Wood, Allen 8, 40, 81
worldliness 162

Young Hegelians 75–6

Zolo, Danilo 150

I N D E X

176

Document Outline

BOOK COVER
TITLE
COPYRIGHT
CONTENTS
Acknowledgements
Abbreviations
Introduction
1 Reading and misreading Hegel’s Philosophy of Right
2 The idea of Hegel’s Philosophy of Right
3 Hegel and Kant natural law and the science of right
4 State and revolution Hegel Rousseau Marx
5 Right and value unity of Hegel and Marx
6 Totalitarianism and the rational state Arendt
7 State and revolution revisited Arendt
8 Kant’s cosmopolitan ideal and Hegel’s critique
9 Arendt’s critical cosmopolitanism
Bibliography
Index

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